News about the ongoing rollout of the COVID-19 vaccine brings hope that the pandemic has an eventual end date. At the same time, local and national news outlets are reporting cases where workers are being fired for refusing to get the COVID-19 vaccine. On December 16, 2020, the Equal Employment Opportunity Commission (EEOC) issued updated guidance on whether an employer can force the COVID vaccination on an employee. Employers everywhere already require employees to be tested routinely and/or prove negative testing results for the coronavirus. What can employers require of workers for the vaccine?
Can I Get Fired for Refusing the COVID-19 Vaccine?
The answer is, with limited exceptions, “yes.” That is because in “employment at will” states like New Jersey, employees can be fired for a good reason, a bad reason or no reason at all. In theory, if you are an “at will” employee you could be fired for any reason, so long as that reason isn’t illegal such as discrimination or retaliation.
When it comes to a vaccine, employers consider requiring a vaccine to be a health and safety work rule. Workplace vaccination requirements aren’t new, and they have stood up in courts. The health care industry provides a prime example. State and federal courts have repeatedly ruled providers can compel workers to be immunized against the flu and numerous other diseases.
What are the Exceptions for Refusing the COVID-19 Vaccine as Condition of Employment?
There are several ways employers can require their employees to become vaccinated. First, employers can require employees to get vaccinated off-site by third parties, such as doctors or pharmacies. Second, employers can bring such third parties on site to administer the vaccine to employees. Third, employers can have one of their own appropriately licensed employees administer the vaccine.
As with every vaccination requirement, there are exceptions for those who have a medical disability under the ADA that leaves them unable to receive the vaccine, and for those who have a sincerely held religious belief against vaccines. In both instances, the burden of proof lies with the employee. In the case of religious exemptions, those exemptions usually do not include personal or ethical objections.
If an employee wants an exemption, the employee must make their employer aware of those concerns and likely provide some form of proof. The employer, then, is required to attempt reasonable accommodation to continue that person’s employment. The EEOC warned employers to make every effort possible not to fire employees with a religious or medical exemption.
Whether vaccine mandates actually show up in your workplace might be a case-by-case question. A hospital or nursing home might require such a precaution early on, while a white-collar workforce already working remotely might decide no mandate is necessary.
Brandon J. Broderick, Employment Law, New Jersey and New York
If you are experiencing discrimination in the workplace, Brandon J. Broderick, Attorney at Law, can help. Rated as one of New Jersey’s top employment law firms, Brandon J. Broderick is focused on client care and passionately pursuing the best interests of our clients. Contact us today for a free consultation.