A number of American workers are pushing back against their bosses for mandating the coronavirus vaccine. At the same time, larger employers are pushing back against the federal government for mandating that all workers be vaccinated or tested weekly for Covid-19. There's also confusion over who can mandate vaccines and who can refuse vaccines.
Here are answers to 10 common questions about how these mandates work that every worker and employer should know:
1. Are Covid vaccine mandates from a private employer legal?
Yes. In New York, an employer may set and control conditions of the workplace, including barring workers who are unvaccinated. Some large employers are even adding health insurance surcharges for those who haven’t received the shot, which is generally legal unless barred by a state law or contractual agreement. In some cases, employers are requiring workers to either get vaccinated or submit to regular testing and more strict masking requirements.
Additionally, federal employment laws do not bar private employers from implementing a vaccine requirement. Earlier this year, the Equal Employment Opportunity Commission released guidance, which was updated recently, that federal anti-discrimination laws do not prevent an employer from requiring vaccinations or offering incentives to get vaccinated for workers who are in the workplace, as long as reasonable accommodations are provided.
2. Can the federal government mandate vaccines at work?
Again, generally yes, for public health reasons, and if enacted properly. To be clear, there is no federal law mandating the Covid vaccine. Instead, under a provision of the Occupational Safety and Health Act, President Joe Biden has directed that companies with 100 or more employees ensure that workers are either vaccinated or tested weekly. This mandate is facing several legal challenges on procedural and substantive grounds, and a federal court recently agreed with a group of larger employers and told the federal government that it cannot enforce this mandate until additional arguments for and against it are presented to the Court.
3. Can New York state mandate vaccines? What about other states?
Yes, for public health reasons, any state can mandate vaccination, but anti-discrimination laws must be followed. You are already required to get routine vaccinations for secondary schools and state universities.
4. Are there any exemptions for vaccine mandates?
Yes, you can get an exemption for medical or religious reasons. Similar to education-related mandates, employees should be afforded a medical or religious exemption under the Americans with Disabilities Act and Title VII religious discrimination protections, among other laws. The religious exemption is based on a sincerely held religious belief, practice or observance, so you will need to demonstrate some evidence of that sincerely held belief.
5. Can my employer challenge my religious exemption?
Yes. The EEOC’s guidance confirms that employers may ask factual questions or requests additional information, so long as the inquiry is due to an objective skepticism about the religious nature or the sincerity of a particular belief by the employer. If an employee fails or refuses to cooperate, then accommodation may be denied. Fear of the vaccine does not qualify.
The following issues may be considered by the employer: whether the employee has acted in a manner inconsistent with the professed belief (though mere inconsistency is insufficient); whether the accommodation sought is a benefit that is likely sought for nonreligious reasons; whether the timing of the request renders it suspect (e.g. does the employee have another reason for avoiding the shot); and whether another reason exists suggesting the accommodation is not sought for religious reasons.
6. Does my employer have to accept a religious exemption?
No. Even if a request for a religious exemption meets the standards outlined above, an employer could deny it if granting it would be an “undue hardship” on the employer. Under federal law, that’s a low standard for the employer, although states like New York have a higher bar for the employer to meet on this standard. Under the lower federal standard, that hardship could be anything that would require something other than a minimal cost to accommodate the employee.
The EEOC said that in this case the consideration of the burden could include the risk of spreading Covid to coworkers. In that case, whether the work is done inside or outside, with small groups or large, or even how many other workers have asked for an exemption could all be considerations. A worker who might otherwise have been granted an exemption could still be denied if too many other workers requested one, raising the cumulative cost of doing business. A granted exemption could even be reversed in certain circumstances.
7. If I get a religious exemption, what happens next?
Even if you manage to get a religious exemption, your employer is still in charge. Though employee preferences should be considered, questions like whether you can work from home or if you would be required to go to the workplace, wearing a mask and getting regular testing, would be up to your employer.
8. Have there been any lawsuits over these rules?
Yes, in both state and federal courts. In New York, teachers are suing and won a change to New York State mandates compelling the mandate to permit a religious exemption. Health care workers in New York also sued the state in federal court requesting a religious exemption, winning the right to have it considered. Recently, a federal appeals court stayed the federal mandate for vaccines or weekly testing for employers with 100 or more employees.
9. If I refuse to get vaccinated, was I fired or did I quit? Can I collect unemployment?
Because you are refusing an employer requirement and violating company policy, your situation is more akin to being terminated for cause due to your refusal to comply with a company policy, so you may not be eligible for unemployment benefits. There are exemptions for medical reasons and religious beliefs.
10. Can my employer require me to get vaccinated even if I’ve already had Covid?
Yes. Though natural immunity can protect you from infection, immunity levels vary from individual to individual, and it would be impossible for employers to know whether a worker could still spread the coronavirus. There is no legal distinction that would allow someone to make a claim of immunity due to prior infection.
The bottom line: If you are required to get vaccinated, and you don’t have a strong medical or religious reason for rejecting it, the law is not on your side.
The vaccine mandates are also only becoming more widespread. Keep in mind that if you quit your current job because you don’t want to get the shot, you may find it hard to find another job that doesn’t also require it. This is a very fluid situation that the courts are grappling with now.
This article is not intended as legal advice, but rather for educational purposes.