This story was first published on December 21, 2020.
Throughout the coronavirus pandemic, some New Jersey residents have been able to work from home.
But as vaccination efforts continue to ramp up in the state, officials say we are likely only months away from widespread vaccine availability. It could be a game-changer for employees who have spent months away from the office.
It also raises a lot of questions.
Employers are responsible for ensuring the safety of their workplace, but what if some workers do not want to be vaccinated? Can your boss demand it? What if you take the vaccine but your colleagues don’t? Do you have rights?
Here’s what to expect.
Can my employer require that I be vaccinated against the coronavirus?
The Employment Opportunities Commission (EEOC) recently released guidance that labor law experts have been waiting for. He said the Americans With Disabilities Act (ADA), which gives workers certain rights when it comes to an employer requiring certain medical examinations, does not apply when it comes to COVID vaccines.
“If a vaccine is administered to an employee by an employer to protect against contracting Covid-19, the employer does not seek information about an individual’s current impairments or state of health and, therefore , this is not a medical examination, ”the EEOC said on its website.
He said the requirement for a COVID vaccine would be allowed.
Employers have an obligation to ensure a healthy and safe working environment for their employees, said Dennis Alessi, partner and co-chair of the employment law group at Mandelbaum Salsburg on Roseland.
“It is on the basis of this obligation that employers are allowed to require employee testing for COVID-19,” Alessi said, noting that he expected the EEOC ruling that employers would have the right to require vaccination of employees.
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Employers can demand vaccines if the failure to vaccinate results in a direct threat to other employees, agreed Timothy Ford, partner and member of Einhorn, Barbarito, Frost & Botwinick’s employment and litigation services in Denville.
But that doesn’t mean employers should be in a rush to institute new vaccine rules.
“Since the Pfizer vaccine has only received emergency use authorization, employers should be reluctant to mandate it until the Food and Drug Administration (FDA) extends the authorization to its standard approval,” that it is effective. ” Ford said.
Are there exceptions for certain workers?
The EEOC said employees can be exempt from a mandatory vaccine if the employee has a disability covered under the U.S. Disability Act (ADA) that prevents them from taking the vaccine, Ford said.
There are other exceptions.
Ford said an employee may be exempt from the vaccination requirement under the religious accommodation provision of Title VII of the Civil Rights Act of 1964, which could cover religious and other exemptions.
“These are usually the exceptions for certain vaccinations like the flu shot,” Ford said.
He said that by using the “direct threat” standard, these exceptions, especially in some industries, may not apply.
“It is widely expected that health care providers, teachers, nurses and senior care workers will be mandated to get vaccinated,” he said.
Alessi said there could also be exceptions for employees who have underlying medical conditions, such as these severe allergic reactions, which have proven to be a problem for several people who have taken the Pfizer vaccine.
“We expect employers to have the right to require employees to provide medical documents to qualify for this exception,” he said.
What if my boss doesn’t need it? Can I be made redundant if I don’t want to work with unvaccinated colleagues?
You have options.
Ford said COVID-19 has presented employers with many unprecedented challenges, but each worker’s case presents variables and must be addressed on a case-by-case basis.
There may also be different circumstances depending on the job and industry.
“In general, an employer can fire an employee for his refusal to meet the requirements of his job and / or his failure to be present at work,” said Ford. “However, if an employee has a disability recognized under New Jersey anti-discrimination law or the ADA that would impact their ability to return to work in an environment with unvaccinated co-workers, reasonable accommodations will be made. necessary for the employee. “
Additionally, he said, Gov. Phil Murphy’s executive orders require remote work when possible for non-essential businesses.
Alessi said employees can file a complaint under the Occupational Safety and Health Act (OSHA), saying the employer creates an unsafe and unsanitary work environment because the employer does not require that all employees are vaccinated against COVID-19.
“If the employee is fired for making such a complaint, the employee likely has a retaliation request for exercising their rights under OSHA,” Alessi said.
If I have to show proof of a vaccine, isn’t that an invasion of privacy?
Yes, it’s a privacy breach, Alessi said.
“However, employers have been allowed to invade employee privacy by requiring testing for COVID-19,” he said, noting that a vaccination requirement would be a continuation of the employer’s obligation to maintain a safe and healthy working environment.
Vaccines are already needed in some industries, Ford said, such as the flu shot.
“A vaccination certificate may be required, limiting the information provided,” he said.
Even though an employer can require a vaccine, that doesn’t mean an employer should, Ford said.
“Employers may not want to lose valuable employees due to their refusal to be vaccinated, especially in the early stages of vaccination and its implementation under emergency use authorization,” Ford said. .
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Karin Price Mueller can be contacted at [email protected].