As the COVID-19 pandemic continues and with the recent surge in COVID cases across the United States, more and more employers are requiring that employees get the COVID vaccination or be terminated. Employees may wonder whether an employer can require a COVID vaccination as a condition of employment. The short answer is yes, an employer can require its employees to get the COVID vaccine to remain employed. However, there are generally two limited exceptions to keep in mind.
First, the Americans with Disabilities Act (“ADA”), as amended, requires an employer to provide a reasonable accommodation to an employee who, because of a disability, did not get vaccinated for COVID-19, unless providing the accommodation would pose an undue hardship (due to significant difficulty or expense). In other words, if an employee has a disability that prevents him or her from getting the COVID-19 vaccine, an employer can reasonably accommodate the employee in a number of ways, including, having the employee wear a mask at work in lieu of getting vaccinated, work a modified shift or from home, or require COVID-19 testing. Under the ADA, an employer is allowed to ask an employee for medical documentation to substantiate the need for a reasonable accommodation.
Next, Title VII of the Civil Rights Act of 1964 (“Title VII”), as amended, requires, among other things, an employer to provide a reasonable accommodation to an employee who, because of a sincerely held religious belief, practice, or observance, did not get vaccinated, unless providing the accommodation would pose an undue hardship. Here, the employees sincerely held religious belief, practice, or observance must prevent the employee from getting a COVID-19 vaccination. If that is the case, the employer can reasonably accommodate the employee in the same ways discussed above. Similar to the ADA, the employer can ask the employee for documentation or information that supports the employees sincerely held religious belief. Under Title VII, undue hardship is defined as having more than minimal cost or burden on the employer, which is an easier standard to meet compared to the ADA undue hardship standard.
Both the ADA and Title VII apply to employers with 15 or more employees. Employers with less than 15 employees will have to look at state law to determine any reasonable accommodation requirements.
In summary, as COVID-19 cases continue to surge, employees should expect that more and more employers will require the COVID-19 vaccine to continue employment. Unless the employee falls under a limited number of exceptions, the employer is within its legal rights to do so.