Cleveland employees and employer vaccine mandates
In the face of an ongoing global pandemic, employers in Ohio are starting to require their employees to get the COVID vaccine. The question for many employees is whether their employers can do that. The U.S. Equal Employment Opportunity Commission recently issued guidance to help answer the question. For the most part, the answer is yes, although there are some exceptions.
If I have a disability can my boss force me to get the COVID vaccine?
There are some employees who have a medical disability that makes them unable to get the coronavirus vaccine. For them, the Americans with Disabilities Act will determine whether and how their jobs are protected.
Generally, the ADA allows employers to hold employees to job-related standards—for instance, being vaccinated. If an employee’s disability prohibits them from being vaccinated, however, the employer can’t require it unless the unvaccinated employee would pose “a direct threat” to the health of the workplace. The term “direct threat” means a “significant risk of substantial harm” to the employee or others that can’t be eliminated or reduced by reasonable accommodation.
Whether a given employee poses a “direct threat” in a workplace is a highly fact-specific question. It will depend, among other things, on the likelihood and severity of the harm. In the case of COVID, it might depend on the level of community spread, the work environment, the nature of the employee’s job, any workplace precautions the employer has put in place (i.e. masking), and other relevant factors.
If an unvaccinated employee does post a direct threat, the employer must determine whether there are any reasonable accommodations (modifications to workplace policies and procedures) that might allow the employee to continue working safely. Examples of such accommodations might include remote work, requiring masks, reassigning the employee to a different workspace, staggering shifts, or making other changes to the workplace to minimize physical contact.
Am I entitled to a religious exemption from the COVID vaccine?
In some limited circumstances, an employee might have a sincerely held religious belief or practice that precludes them from getting the COVID-19 vaccine. According to the E.E.O.C., for those few employees, employers will need to provide an exception from the vaccine requirement unless it would “pose an undue hardship on the operation of the employer’s business.”
The definition of “undue hardship” in this context is different than under the ADA. Here, it means something more than a minimal cost or burden to the employer. It’s an easier standard than under the ADA. Examples of undue hardships in the religious accommodation setting might include decreased production, or more likely, a risk to the health and safety of others. If the religious accommodation would pose an undue hardship, the employer must then consider possible accommodations. Those include the same sorts of accommodations that might apply in the context of an employee with a disability.
A moment here to emphasize the word sincerely. Title VII’s protection from religious discrimination is not an excuse to avoid getting vaccinated for nonreligious reasons, such as general distrust of government or the vaccine, misinformation about vaccines, or political motivations. Title VII protection is for those with sincere religious practices or beliefs against vaccination, such that they might also be opposed to things like the flu vaccine. That said, as a general practice employers should presume the employee’s religious belief is sincere. Only if the employer knows of objective facts giving rise to doubt the employee’s sincerity may the employer seek supporting proof.
Can my employer disclose my vaccination status?
No. Under the ADA, employers must maintain confidentiality of their employees’ medical information. That includes information about whether an employee has been vaccinated. Though an employer might require employees to show proof of vaccination, the employer must keep that documentation confidential. It cannot keep the documentation in the employee’s personnel file.
Protecting employee rights at work during coronavirus.
These are trying times for us all. People are scared and uncertain—about their jobs, about the virus, and maybe also about the vaccine. If you have questions about your workplace rights regarding COVID-19, call the Cleveland employment lawyers at Bolek Besser Glesius for a free consultation.