By the NJPSA Legal Team and LEGAL ONE
Employers may require their staff to take the COVID-19 vaccine and show proof of vaccination. This is the conclusion drawn from the guidance that was provided in December 2020 by the Equal Employment Opportunity Commission (EEOC), the federal agency charged with enforcing federal workplace discrimination laws.
A link to the EEOC guidance is attached here: Dec. 16, 2020 Guidance on Employer-Mandated Vaccines.
Despite this guidance, employers should nevertheless be mindful that their authority is limited. Even if there is an employer mandated vaccine policy whose purpose is to offer a measure of protection to all of its employees, the employer still must provide exemptions or accommodations to employees who present objections based on sincerely held religious beliefs or disability concerns. Conversely, in the face of employer mandated vaccine policies, employees need to understand that they can’t simply refuse to be vaccinated because they don’t trust the vaccine or because, more generally, they are against vaccines or because they are fearful or anxious of the vaccine’s potential side effects.
The balancing of interests in regard to Covid 19 vaccinations involves the rights of individual employees versus the need to provide for the safety of all staff to the greatest extent possible. So, with this in mind, even when employees refuse the vaccine for sincerely held religious beliefs or disability-related reasons, the employer may still exclude the employee from the workplace if the employee’s presence poses a direct threat to others. In determining whether a direct threat exists, the factors that may be considered include: 1) the duration of the risk; 2) the nature and severity of the potential harm; 3) the likelihood that the potential harm will occur; and 4) the imminence of the potential harm. Given the high level of transmissibility of COVID, which has been made more extreme by the more recent “variant” of the disease, it may be even more likely that employers will be able to establish the existence of a direct threat justifying the exclusion of employees from the workplace even when legitimate religious or disability related reasons have been raised.
To date the CDC has not identified any group, 18 or over, that is at greater risk of adverse medical reaction if they receive the vaccine, except those with severe allergic reactions.. The CDC has issued Interim Clinical Considerations for Use of mRNA COVID-19 Vaccines which identifies some underlying medical conditions where there is currently a lack of data on the safety and efficacy of the vaccine.. Additionally, the CDC or other recognized health authorities may provide at some point additional information that certain groups are at greater risk if they receive a vaccination. So, what disabilities may justify an exemption or an accommodation to an employer mandated vaccine policy is still in a state of flux.
Set forth below is a brief explanation of how the exemptions to employer required vaccines would work.
Disability-based refusals
Employees who refuse to be vaccinated for disability-based reasons must do so based on some underlying qualified disability or medical condition covered by the ADA or disabilities identified by the CDC and health authorities. Once that occurs, the employee accommodation request is supposed to trigger an interactive process as to whether a reasonable accommodation can be made. To this end, the employer may ask the employee for an explanation of the disability to be able to determine the nature of the accommodation that may need to be provided. Always fact sensitive, the interactive process balances the accommodation request along with the reasons for the request, with the cost and feasibility of the requested accommodation. As we have said in related guidance throughout this pandemic, not all requests for accommodations are reasonable and not every request for an accommodation can be granted. If, when balancing the requested accommodation versus its cost or feasibility, it is determined that it will cause undue hardship to the employer, the employer is within its rights to deny the requested accommodation.
Religion-based refusals
An employee’s sincerely held religious belief may also be a basis for the employee to refuse receiving the vaccine. Under this scenario, as with employees having qualified disabilities or medical conditions, employers have to provide reasonable accommodations. But, here too, balancing the interests of the employee’s religious objection to the vaccine, versus the cost or feasibility to the employer relative to the requested accommodation, is fact sensitive. In making its assessment as to the accommodation request and its feasibility, if employers have an objective basis for questioning the religious nature or sincerity of a particular belief, they are permitted to question the employee and seek additional information as to whether the religious belief is in fact “sincerely held” and if is, whether the requested accommodation causes the employer undue hardship.
Summary
While at the moment there is no State mandate to receive the vaccine, the EEOC guidance appears to allow for employers to require their employees to get vaccinated subject to certain ADA supported disabilities and religious-based reasons, and for CDC identified health conditions as well, which when raised will trigger a fact-sensitive individualized inquiry balancing the requested accommodation with the hardship that may be caused to the employer. If the employer determines that the accommodation will cause an undue hardship, or if the refusal to be vaccinated for religious reasons is not objectively and factual supported, the requested accommodation may be denied
To date, the State of New Jersey has yet to put out its own guidance on this issue. While we expect the State to publish guidance in the near future, the EEOC’s Federal Guidance is applicable here and establishes baseline protections.
Additionally, notwithstanding the fact that guidance from the State has yet to be issued, it is important to note that N.J.S.A. 26:4-6 expressly states that “[a]ny body having control of a school may, on account of the prevalence of any communicable disease, or to prevent the spread of communicable diseases, prohibit the attendance of any teacher or pupil of any school under their control and specify the time during which the teacher or scholar shall remain away from school.” So, given the current status of the health emergency that Covid-19 presents, prohibiting the attendance of any teacher or pupil until the time at which the teacher or pupil has been vaccinated to prevent the spread of Covid-19 may very well be a valid restriction- subject to the limitations described herein or by other provisions under the EEOC laws or other federal, state, and local authorities.
Also, importantly, the EEOC guidance does not address whether students will be required to receive the COVID-19 vaccine. New Jersey pupils are currently required to receive various vaccines—like measles, mumps and rubella. The expectation is that at some point there will be similar requirements relative to the COVID-19 vaccine.
As always, the information discussed above is general and if you have a specific legal question, please contact NJPSA.