COVID-19 vaccination trials continue across the United States, making many New York employees wonder when the vaccination becomes available, can employees be required to get it? Much like everything else in the COVID-19 era, the answer is complex. The attorneys at Brown Kwon & Lam explain your COVID-19 employee rights when it comes to the COVID-19 vaccine.
Employee Mandates for COVID-19 Vaccine
In general, employers can require vaccinations as a term and condition of employment. However, limitations must be enacted to avoid discriminatory practices. Under the Americans With Disabilities Act (ADA) and Title VII of the Civil Rights Act of 1964, an employee is permitted to request an exception to mandatory vaccinations for a disability which would stop him or her from getting the vaccine, unless it poses an undue hardship on the employer.
The ADA defines undue hardship as one that creates “significant difficulty or expense” to the employer in providing such accommodation. In addition, Title VII requires that once an employer receives notice that an employee’s religious belief, practice, or observance prevents the employee from taking the vaccine, the employer must provide a reasonable accommodation unless it would pose an undue hardship to the employer.
The standard for undue hardship under Title VII is lesser than that under the ADA. Under Title VII, employers do not need to grant religious accommodation requests that result in more than a minor cost to the operation of the employer’s business.
Because of these nuances, employers are being told to encourage vaccinations, not mandate them. However, because of the widespread devastation COVID-19 has caused, especially in New York City, the standard of necessary safety measures may be more stringent. But, given the uncertainty of the side effects of a COVID-19 vaccine, the burden of workers’ compensation from such a mandate may be even more difficult to combat.
Historical Prevalence of Vaccination Requirements
Typically, only medical facilities require certain vaccinations. But there has been historical prevalence that it is possible to mandate it in different places of employment.
In the case of Jacobson v. Massachusetts (1905), a Massachusetts law was questioned for allowing cities to require residents to be vaccinated against smallpox with minor exceptions.
The law was believed to be a violation of the Fourteenth Amendment’s right to liberty. However, the United States Supreme Court ruled that the law was within the state’s police power to protect public health.
As such, vaccination mandates at state levels are possible. In the 2019 measles outbreak, New York City mandated that individuals over six months old who lived, went to school, or worked in a variety of ZIP codes had to receive the measles vaccine or be subjected to a fine.
While federal mandates are unlikely, in states with high COVID-19 positive rates, it isn’t unfathomable to think it could happen. But if you are a member of a protected class and cannot receive a COVID-19 vaccine, know that you have rights.
New York Employee Rights Advocate: Brown Kwon & Lam
As a member of a protected class, you have a right to say you do not want to, or cannot receive a COVID-19 vaccine. However, if your employer does not make reasonable accommodations for you, you may need legal guidance. Contact the New York employee rights attorneys of Brown Kwon & Lam today.