Can your employer require you to receive COVID-19 to go to work?


If you are wondering if your employer can require you to receive COVID-19 vaccination to return to work, the short answer is yes. But that doesn’t mean employers don’t face a “legal minefield” if and when they decide to implement a vaccination policy.

Although trial attorney Misty Marris said employees should be required to take a test as a prerequisite for returning to work, “there is no world where there is a mandatory COVID-19 vaccination policy from which there are no exceptions.”

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Marris, who does a lot of labor law, is co-chair of the Gordon Rees Scully Mansukhani LLP New York office.

As the United States is waiting for Pfizer / BioNTech and Moderna COVID-19 vaccines to be licensed for emergency use by the Food and Drug Administration, employers need to be prepared to set up a framework for how employees can arrive. safely back.

For both public and private employers, this may mean encouraging workers to get vaccinated or implementing mandatory vaccination programs.

The Emergency Operations Center (EOC), which issued guidance to employers during the pandemic, said the virus meets the requirements of a “direct threat.”

Because the virus is seen as a direct threat, Marris says employers are able to perform health checks in the workplace that federal laws would not normally allow in pre-pandemic times. This means that employers are able to measure someone’s temperature before they come in or tell someone they need to go because they have symptoms.

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“While nothing says it’s illegal,” if an employer runs a mandatory vaccination program, that doesn’t mean it’s not a thorny, thorny path. “

However, any mandatory program must take into account other aspects of employment laws, Marris said, which he believes will result in different accommodation needs.

The two main exceptions that will emerge in the future are those related to religion and disability.

Section VII of the Civil Law Act 1964. Under its title, a sincerely professed religious belief can serve as a basis for religious immunity.

“In the context of a vaccination, an employee can apply for an exemption from the mandatory vaccination based on religion,” Marris said, adding that the employer should then consider whether accommodation can be provided. In this case, it could mean teleworking or social distance.

However, if the employer does not provide the accommodation, “you must prove that the accommodation causes undue hardship to the company.”

Second, employers must consider the Americans with Disabilities Act of 1990 (ADA).

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If an employee requests accommodation under the ADA, he or she must prove that he or she has a disability. You may have an employee who says you have a chemical sensitivity to some vaccine. Workers can also cite allergies as a cause.

However, there are a number of other aspects to consider, including people who think they have anxiety about the possible side effects of vaccines. The question arises as to whether this is a medical condition, which depends on what jurisdiction someone has.

“It is not known whether the courts will extend protection against anxiety in a pandemic world,” he added.

At the end of the day, however, “employers don’t just want to think about responsibility,” Marris said. “He wants to think about the workforce, the morale of the workforce.”

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