COVID-19 vaccinations are shots that are given to individuals in order to provide immunity to the COVID-19 virus. There are many places individuals can receive COVID-19 vaccinations. There are also different brands available on the market. In some vaccination locations, an individual may choose which they wish to receive.
Establishments that will be distributing covid-19 vaccines include:
- State agencies;
- Local public health agencies;
- Community partnerships;
- The Pharmacy Partnership for Long-Term Care Program (LTC); and
- The United States Department of Veterans Affairs (VA).
Some employers may also offer the vaccine. An individual should only receive the vaccine by a licensed professional. A list of approved vaccine providers may be found on the websites of public health departments and state governments.
At this time in the United States, individuals do not have to pay for the COVID-19 vaccine. Medicaid, Medicare, and private insurance companies are required to cover the cost of the vaccine. This, however, may not always be the case.
Can My Employer Require Me to Get a COVID-19 Vaccination?
Yes, an employer may be able to require employees to receive the COVID-19 vaccination, with some exceptions. A private sector employer, in general, can require employees to receive a COVID-19 vaccination as a condition of their employment, so long as the employer considers requests for disability or an exemption on religious grounds.
There are, however, workplaces that may be subject to unique conditions. For example, if there is a collective bargaining agreement, that agreement may prohibit mandatory vaccination of employees or address the topic of vaccines in another manner. Similar to this situation, if an employee is not an at-will employee, but instead has an employment contract, that contract may provide guidance on vaccination requirements.
If an employer is considering a mandatory vaccination requirement, they should take into account changing local and state laws. There are currently no state laws that specifically address the COVID-19 vaccine.
Many states, however, do have laws regarding other types of vaccinations for certain types of workers. In the future, states may pass laws prohibiting mandatory covid-19 vaccination.
In addition to these issues, there are also practical issues to consider when deciding whether to mandate vaccinations for employees or to make them mandatory. This includes a public health interest in herd immunity, protecting the health and safety of employees, and avoiding a business closure due to COVID-19. Employers should also consider the administrative burden of processing requests for vaccines, whether employees desire to receive the vaccine, and a reduction of the cost of employee absences and medical care as a result of COVID-19.
What if I Feel My Rights were Violated Regarding COVID-19 Vaccination Issues?
As previously noted, whether or not an individual’s employer is permitted to require a vaccination as a term of employment will depend on the type of employment and whether a contract or bargaining agreement applies. It is important to remember that employees are permitted to request exemption on the basis of disability or religion.
An employer must consider requests for exemption based on disability under the Americans with Disabilities Act (ADA) and for exemption based on religion under Title VII of the Civil Rights Act of 1964 (Title VII). These laws require an employer to provide reasonable accommodations to an employee with a disability or a sincerely held religious belief that would prevent them from receiving the vaccination.
The Equal Employment Opportunity Commission (EEOC) enforces federal workplace anti-discrimination laws. The EEOC has issued guidance regarding the COVID-19 vaccine and the workplace. They explain that if an employee makes an exemption request from an employer’s mandatory vaccination program on the grounds of disability, the employer must determine whether or not the unvaccinated employee would pose a direct threat to their own safety or the health and safety of others.
An employer should analyze the issue on a case-by-case basis by examining 4 factors in order to determine if the unvaccinated employee poses a direct threat, including:
- The duration of the risk;
- The severity and nature of the potential harm;
- The likelihood that a potential harm will occur; and
- The imminence of the potential harm.
For example, if the employee works for a company where the employees work remotely, they likely do not pose a direct threat. However, if employees are required to be on-site and work closely together in an unventilated indoor space, that unvaccinated employee would likely constitute a direct threat.
If the employer concludes that an unvaccinated employee does pose a direct threat, they must then determine whether that threat may be eliminated or reduced by a reasonable accommodation. The employer must determine the extent to which a reasonable accommodation would allow the employee to perform their essential duties without imposing an undue hardship, or a significant difficulty or expense, on the business.
If an unvaccinated employee is a direct threat and that threat cannot be reduced to an acceptable level without undue hardship, then the employee is not protected by nondiscrimination provisions of the ADA, and the employer may physically exclude them from the workplace. This does not mean the employer can automatically terminate the employee without determining if other rights apply under federal anti-discrimination laws, federal laws, state laws, or local laws.
If an employee requests an exemption due to religious beliefs, the employer should assume it is a sincerely held religious belief. However, the employer is not required to grant a religious accommodation request that results in more than a minimal cost to the employer’s business.
If an individual feels their rights were violated, they should seek the advice of an attorney as soon as possible. The laws are changing daily and a lawyer is best equipped to understand those changes.
What if My Employer Violated COVID-19 Vaccination Laws and Protocol?
The ADA limits an employers ability to require a medical examination of their employees. However, the EEOC has provided that the administration of a COVID-19 vaccine to an employer is not considered a medical examination for the purposes of the ADA.
The EEOC has also stated that a pre-vaccination medical screening includes questions that are likely to elicit information regarding a disability. Because of this, employers that provide on-site COVID-19 vaccinations must show their screening questions are related to the job and consistent with a business necessity.
If an employee believes their employer has violated COVID-19 vaccination laws and protocol, they should contact an attorney as soon as possible. They may also be able to file a claim with the EEOC.
What if I Lost My Job Due to a COVID-19 Issue?
As discussed above, employees have certain rights regarding vaccinations and employment. If an employee believes they lost their job due to a COVID-19 issue, they may have a claim for wrongful termination in certain cases.
In addition, Congress has passed laws regarding COVID-19 and workplace issues. Under the Families First Coronavirus Response Act (FFCRA), an employee is permitted to take up to 80 hours of paid sick leave if they have to stay home from work due to exposure to COVID-19. Additional rights may also be available under the employee’s state laws and the Family and Medical Leave Act (FMLA).
There are protections in place against discrimination when terminating an employee. These protections apply to the COVID-19 virus and employees who are required to self-quarantine or care for others, including children who cannot attend school or child care due to the virus.
Should I Hire an Employment Law Attorney for COVID-19 Related Issues?
Yes, it is extremely important to hire an experienced employment lawyer for any COVID-19 related issues you may have. If you are an employer who is considering implementing a COVID-19 vaccination program, consulting with an attorney will ensure you do not violate the ADA and other workplace anti-discrimination laws and that exemption requests are handled correctly.
If you are an individual who believes your rights have been violated related to COVID-19 vaccines, a lawyer can review your situation. Your lawyer can determine if you have a claim under existing laws as well as under newly enacted laws. In these uncertain times, having a lawyer on your side is your best chance at success.