One year after COVID-19 first began sickening American citizens, the development and approval of three vaccines is offering hope that things will soon return to normal. Not only will people be able to socialize and travel again, but all of the changes that have affected businesses — most notably telecommuting for office workers and mask wearing and limited occupancy for those who work with the public or in close proximity to others — are likely to slowly be eliminated as more and more people get the Moderna, Pfizer, or Johnson & Johnson protections against the worst effects of the virus. But what if you’re an employee who doesn’t want to get vaccinated, or who can’t because of a religious belief or a medical condition? Can you be forced to get a vaccine that you don’t want to have?
Whether an employer is able to require COVID-19 vaccinations for their employees is a matter that has previously been addressed with reference to other vaccinations. The answer is that you can be required to get vaccinated as a condition of your employment under both New Jersey state and federal laws, though there are a few exceptions to the rule.
According to guidance published by the U.S. Equal Employment Opportunity Commission, there are some circumstances under which employers are permitted to require employees to be vaccinated in order to remain employed, but that does not give the employers the right to vaccinate workers in violation of other existing federal or state laws. To help you understand how those laws may apply to your particular situation, we’ve provided a summary of each below.
- Title VII – This federal law targets discrimination based on race, color, sex, religion, and national origin, and it protects both job applicants and existing employees of both private and public employers with 15 or more employees. It says that companies can’t deny employment or treat individuals differently on the basis of these protected characteristics. As such, the law means that employees or job applicants who have a “sincerely held religious belief, practice, or observance” that leads them to refuse to be vaccinated must be accommodated by their employer. Previous case law has shown that this language can accommodate religious beliefs outside of the norm if it can be demonstrated that they are sincerely held as long as doing so does not cause “undue hardship” to the employer.
- ADA – The Americans with Disabilities Act prohibits discrimination against qualified individuals with disabilities and requires reasonable accommodation and equal access to employment by companies with 15 or more employees in both the private and public sectors. Under the ADA, vaccinations are considered “medical examinations” and can only be required if they are “job-related and consistent with business necessity.” In the past this exception has been applied to healthcare workers. Though that may not be the case for the COVID-19 vaccine, the ADA also protects those whose disabilities preclude them from receiving the vaccine from discrimination based on that disability. If this applies to you, your employer will be required to find a reasonable accommodation, which may mean that you will be required to wear personal protective equipment not required of vaccinated employees, or you may be moved to a location where you do not come into contact with other employees or customers. You may also be able to work remotely or to take a leave of absence. Under the ADA, an employer can demonstrate undue hardship under a broader definition, including if the accommodation would cause significant difficulty or expense, but they are required to pursue an interactive process that explores all possibilities for reasonable accommodation.
New Jersey State Laws
- NJLAD – The New Jersey Law Against Discrimination has a well-earned reputation as one of the nation’s legal protections against discrimination, harassment and retaliation It applies to all non-federal employers in the state, and prohibits them from mandating anything “that would require [an employee] to violate or forgo a sincerely held religious practice.” With reference to accommodation, the law requires employers to “reasonably accommodate” the employee’s religious practice unless doing so would cause “unreasonable interference with the safe or efficient operation of the workplace.” The same is true of discrimination based on disability, including medical conditions that would prevent vaccination.
- NJCEPA – This state-based whistleblower protection law stops employers in the state from retaliating against employees who report or refuse to comply with actions that they believe are illegal or in violation of public policy. This would include complaints about an employer’s actions to protect against COVID-19 or a vaccination policy, so if you object to an employer’s vaccine mandate, this law may serve as a legal protection.
As things in the state slowly return to normal and more companies begin announcing and implementing their COVID-19 vaccination policies, employees need to be aware of their rights. If you have a medical disability that makes vaccination impossible or hold religious beliefs that prevent you from being vaccinated, your employer is required by law to make accommodations for your situation. For more information, contact our employment law attorneys today.