Social distancing and capacity limits have lifted, making the COVID-19 pandemic seem like something of the past. But, as employees return to work, many without masks, employees may be faced with a lingering concern – whether an employer can mandate COVID-19 vaccines.
Whichever side of the vaccination coin you prefer, it's critical to know your rights as an employee.
Many people disagree on how to keep employees safe. Some state leaders want to ban mandated vaccination requirements, while others seek to impose them. The Supreme Court even took on this issue when it reviewed the federal government's mandate for private employees subject to OSHA regulations to require their employees to be vaccinated against COVID-19 for workplace safety. The High Court decided against the federal government. It prevented the OSHA mandate that would have affected countless American workers.
Whether the federal government will be able to mandate vaccines for its own workers is an issue that has been challenged in federal court, appealed, and is still unsettled. Both the 4th and 5th Circuit Courts have ruled that a federal employee must go through an administrative complaint process to challenge the mandate.
However, it is well-established in legal precedent that a private employer can mandate its employees to be vaccinated, so long as they provide for religious and medical exemptions as required.
For most private employees in California, employers can require their employees to receive the COVID-19 vaccine. However, they cannot:
It's also worth noting that when employees have challenged their private employers to mandate the vaccine, judges have allowed such mandates.
In California, the Fair Employment and Housing Act (FEHA) requires employers to reasonably accommodate an employee's disability. Federal laws, like the Americans with Disabilities Act (ADA), also protect disabled employees from a COVID-19-mandated vaccination requirement.
If an employee objects to vaccination for a disability-related reason, the employer must engage with the employee and determine a reasonable accommodation. Reasonable accommodations can include working remotely or a leave of absence.
When thinking of creative options, the employer should consider the following:
However, there may come a time when an employer can exclude the unvaccinated employee, even if for disability-related reasons. For example, if the employee can't perform their essential duties because it would endanger their health or the health and safety of others, they risk being excluded. This decision would be a fact-specific determination. Especially since an employer cannot retaliate against an employee for making such a request.
In California, employers must also reasonably accommodate an employee's sincerely-held religious beliefs and practices.
Your objection to the vaccine cannot be rooted in your personal beliefs. Instead, it must be religious in nature. Many people, even lawyers, incorrectly state that to obtain a religious exemption, your beliefs must be held for a long duration of time and that evidence of having taken other vaccines in the past will undermine your position.
However, the only requirements are that the belief is sincerely-held and religious, rather than merely a concern about the health consequences. So, while your objection to taking a COVID vaccine may be new or different than your view on vaccines in the past, you may still be entitled to a religious exemption if the belief is religious and sincerely held. You may learn new information about the vaccine and now know that taking the vaccine goes against the tenets of your religion or that you have been guided and convicted by your religious scripture against taking the vaccine.
The law also does not require the leaders of your faith to have taken a position against the vaccine for you to be found to have a sincerely-held religious conviction against taking the vaccine.
If an employee makes a religiously based objection to vaccination, the employer must reasonably accommodate the employee. Like an employee who declines the vaccination for a disability-related reason, the employer must engage in an interactive process for accommodations, with the employer declining for a sincerely-held religious belief.
Accommodations may include remote work, job restructuring, job reassignment, or modification of work practices. The accommodation should eliminate the conflict between religious belief and the vaccination requirement.
Again, like in the disability context, an employer can exclude an employee if it shows that any accommodation would result in an undue hardship. However, the employer must ensure their actions are not retaliatory against the employee.
If you are at risk of losing your job due to a vaccine requirement, contact our employment attorneys in San Francisco at the Law Offices of Jeremy Pasternak. This is a very hotly debated, yet commonly misunderstood area of the law, even among lawyers. It is important to work with a lawyer who has a deep understanding of employment law and legal precedents in the area of exemption requests. We can speak to you about your employee rights and ensure that you were treated fairly in your objections to vaccination requirements.