During the coronavirus pandemic, some in New Jersey managed to work from home.
But as vaccination efforts begin in the state, officials say we are probably just a few months away from the widespread availability of vaccines. This could be a game changer for employees who have spent months away from the office.
It also raises many questions.
Employers are required to keep their jobs safe, but what if some workers do not want to get a vaccine? Can your boss ask for it? What if you get the vaccine, but your colleagues don’t? Do you have rights?
Here’s what to expect.
Can my employer ask me to be vaccinated for coronavirus?
Yes.
The Employment Opportunities Commission (EEOC) issued guidance last week that labor law experts expected. It is said that the Americans with Disabilities Act (ADA), which gives workers certain rights when it comes to an employer who requires certain medical examinations, does not apply when it comes to COVID vaccines.
“If a vaccine is given to an employee by an employer for protection against contracting Covid-19, the employer is not looking for information about a person’s deficiencies or current health status and is therefore not a medical examination,” the EEOC said on its website.
He said the requirement for a COVID vaccine would be allowed.
Employers have a duty to ensure that their employees have a healthy and safe work environment, said Dennis Alessi, partner and co-chair of the employment law group at Mandelbaum Salsburg, Roseland.
“It is based on this obligation that employers are allowed to request employee testing for COVID-19,” Alessi said, noting that he expects the EEOC’s decision that employers will have the right to request vaccination of employees.
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Employers can apply for vaccines if the failure of vaccination will pose a direct threat to other employees, agreed Timothy Ford, a partner and member of the employment and litigation departments at Denin’s Einhorn, Barbarito, Frost and Botwinick.
But that doesn’t mean employers should rush to introduce new vaccination rules.
“Because the Pfizer vaccine has only received an emergency use authorization, employers should be reluctant to mandate it until the Food and Drug Administration (FDA) extends the authorization to its standard approval, indicating that it is effective.” Ford said.
Are there exceptions for certain workers?
Yes.
The EEOC said employees can be exempted from a mandatory vaccine if the employee has a disability covered under the Americans with Disabilities Act (ADA) that prevents them from getting the vaccine, Ford said.
There are other exceptions.
Ford stated that an employee may be exempted from the vaccination requirement under the religious accommodation provision of Title VII of the Civil Rights Act of 1964, which may cover religious exemptions and other exceptions.
“These are generally the exceptions for certain vaccinations, such as the flu vaccine,” Ford said.
He said that using the “direct threat” standard, these exceptions, especially in some industries, may not apply.
“It is widely anticipated that health care providers, teachers, nurses and caregivers for the elderly will be mandated for vaccination,” he said.
Alessi said there could be exceptions for employees who have underlying medical conditions, such as those severe allergic reactions, which have proven to be a problem for several people who have received the Pfizer vaccine.
“We expect employers to have the right to require employees to provide medical documentation to qualify for this exception,” he said.
What happens if my boss doesn’t ask for it? Can I be fired if I do not want to work with unvaccinated colleagues?
You have options.
Ford said that COVID-19 presented many unprecedented challenges to employers, but the case of each worker has variables and should be addressed on a case-by-case basis.
There may also be different circumstances depending on the job and industry.
“Generally, an employer can terminate an employee for his or her refusal to fulfill the requirements of his or her position and / or for not being present at work,” Ford said. “However, if an employee has a disability recognized under the New Jersey Anti-Discrimination Act or the ADA that would impact his or her ability to return to work in an environment with unvaccinated co-workers, the employee must have reasonable accommodation. “
In addition, he said, Governor Phil Murphy’s executive orders require remote work, where 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 unhealthy work environment because the employer does not require all employees to be vaccinated for COVID-19.
“If the employee is fired for filing such a claim, the employee is likely to have a retaliatory claim for the exercise of his or her rights under OSHA,” Alessi said.
If I have to show proof of a vaccine, isn’t it an invasion of privacy?
Yes, it is an invasion of privacy, Alessi said.
“However, employers have been allowed to invade employee privacy when they require COVID-19 testing,” he said, noting that a vaccination requirement would be a continuation of the employer’s obligation to maintain a safe and healthy work environment. “
Vaccines are already needed in some industries, Ford said, such as the flu vaccine.
“An immunization certificate may be required to limit the information provided,” he said.
Even if an employer can order a vaccine, that doesn’t mean an employer should, Ford would say.
“Employers may not want to lose valuable employees based on their refusal to be vaccinated, especially in the early stages of vaccination and its implementation under an emergency use permit,” Ford said.
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Karin Price Mueller can be contacted at [email protected].