Our law firm is dedicated to advocating on behalf of employees in various employment law related matters. Lately, we regularly receive calls and communications from employees who object to being vaccinated against COVID-19 and inquire about their rights in the workplace. 

In determining what rights employees have with regard to employer mandated vaccination, it is first dependent on whether the employee is employed in the private industry or as a public employee. Employment status is significant in that many rights afforded to individuals employed by a public entity such as a municipality, a State or the Federal government are afforded greater protections than those employed in the private sector, such as a company or private business. 

Public sector employees enjoy Constitutional and Statutory rights whereas private sector employees are generally considered to be “at-will” employees which means any employer can terminate a private sector employee for any reason so long as the reason does not violate some specific law such as an anti-discrimination statute, for example, Title VII of of the Civil Rights Act of 1964 (The most well-known anti-discrimination law is Title VII of the Civil Rights Act of 1964, commonly referred to as Title VII. This law prohibits discrimination against an employee because of that employee’s race, color, religion, national origin, or sex. Not only this, but employers are required to reasonably accommodate applicants’ and employees’ sincerely held religious beliefs, so long as doing so would not impose an undue burden on the business.) 

Many employers in both the private and public sector are requiring their workers to get vaccinated. In the private sector, an employer is permitted to fire an employee who refuses to be vaccinated because that employee has violated a company policy. The private sector employee has little recourse against the employer unless the employee claims an exemption for medical or religious reasons under Title VII or the Americans with Disabilities Act (“ADA”)

In some circumstances, Title VII and the ADA require an employer to provide reasonable accommodations for employees who, because of a disability or a sincerely held religious belief, practice, or observance, do not get vaccinated against COVID-19, unless providing an accommodation would pose an undue hardship on the operation of the employer’s business. The analysis for undue hardship depends on whether the accommodation is for a disability (including pregnancy-related conditions that constitute a disability) or for religion. 

An employee who does not get vaccinated due to a disability (covered by the ADA) or a sincerely held religious belief, practice, or observance (covered by Title VII) may be entitled to a reasonable accommodation that does not pose an undue hardship on the operation of the employer’s business. For example, as a reasonable accommodation, an unvaccinated employee entering the workplace might wear a face mask, work at a social distance from coworkers or non-employees, work a modified shift, get periodic tests for COVID-19, be given the opportunity to telework, or finally, accept a reassignment. 

Employees who are not vaccinated because of pregnancy may be entitled (under Title VII) to adjustments to keep working, if the employer makes modifications or exceptions for other employees. These modifications may be the same as the accommodations made for an employee based on disability or religion. 

To determine if an employee who is not vaccinated due to a disability creates an “undue hardship” or poses a “direct threat” in the workplace, an employer first must make an individualized assessment of the employee’s present ability to safely perform the essential functions of the job. The factors that make up this assessment are: (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. The determination that a particular employee poses a direct threat should be based on a reasonable medical judgment that relies on the most current medical knowledge about COVID-19. Such medical knowledge may include, for example, the level of community spread at the time of the assessment. Statements from the CDC provide an important source of current medical knowledge about COVID-19, and the employee’s health care provider, with the employee’s consent, also may provide useful information about the employee. Additionally, the assessment of direct threat should take account of the type of work environment, such as: whether the employee works alone or with others or works inside or outside; the available ventilation; the frequency and duration of direct interaction the employee typically will have with other employees and/or non-employees; the number of partially or fully vaccinated individuals already in the workplace; whether other employees are wearing masks or undergoing routine screening testing; and the space available for social distancing. 

If the assessment demonstrates that an employee with a disability who is not vaccinated would pose a direct threat to self or others, the employer must consider whether providing a reasonable accommodation, absent undue hardship, would reduce or eliminate that threat. Potential reasonable accommodations could include requiring the employee to wear a mask, work a staggered shift, making changes in the work environment (such as improving ventilation systems or limiting contact with other employees and non-employees ), permitting telework if feasible, or reassigning the employee to a vacant position in a different workspace.

As a best practice, an employer introducing a COVID-19 vaccination policy and requiring documentation or other confirmation of vaccination should notify all employees that the employer will consider requests for reasonable accommodation based on disability on an individualized basis. 

As it pertains to public sector employees, there have been a number of lawsuits filed throughout the nation, including in Florida, who have sued the government over vaccine mandates claiming the mandates to be unconstitutional. 

In general, two key Supreme Court decisions speak to the authority of state and local officials to issue vaccine mandates. Generally, these decisions concluded that these governments may tell people to get vaccines, unless they belong to an exempt group, or face a penalty. In 1905, the Supreme Court ruled in Jacobson vs. Massachusetts that under a state law local health authorities could compel adults to receive the smallpox vaccine. Henning Jacobson refused a free smallpox vaccination that was mandated by the city of Cambridge; he was fined five dollars as a result. Jacobson argued the vaccination law violated his 14th Amendment due process rights. 

Justice John Marshall Harlan, writing for the court’s majority, concluded that states under their general police powers had the ability to enact vaccine laws to protect citizens. Police powers allow a state to pass laws to protect the health, safety, and general welfare of the public. “It is for the legislature, and not for the courts, to determine in the first instance whether vaccination is or is not the best mode for the prevention of smallpox and the protection of the public health,” Harlan wrote. 

The second decision, Zucht v. King in 1922, arrived at a similar conclusion. San Antonio, Texas, excluded students from public and private schools who were not vaccinated for smallpox. This included the challenger in the case, Rosalyn Zucht. Her attorneys argued the vaccine policy violated Zucht’s 14th Amendment due process rights. Justice Louis Brandeis wrote in the Court’s decision that “long before this suit was instituted, Jacobson v. Massachusetts, had settled that it is within the police power of a state to provide for compulsory vaccination.” 

According to the Congressional Research Service’s most-recent analysis, the general principles in Jacobson and Zucht form the basis for modern vaccine mandate policies, even though the Court’s interpretations of the 14th Amendment have changed since 1922. 

In a recent lawsuit, a federal court declined to grant an injunction against a public university’s vaccine mandate. Eight Indiana University students had sued the school over a mandatory vaccine policy that blocked students from registering for class if they were not vaccinated. Under the university policy, students could apply for a medical or religious exemption if they agreed to wear masks and undergo Covid-19 testing. On August 2, 2021, a federal appeals court upheld a lower court ruling in favor of the university, finding there was not enough evidence that the students’ constitutional rights were being violated; the decision may be appealed to the U.S. Supreme Court. Another recent lawsuit filed by a law professor at George Mason University has challenged that school’s vaccine mandate as well. 

However, the broad powers held by states to control vaccine policy can also be used by state governments to block vaccine mandates, in certain situations, at lower government levels and in the private sector. As of August 2, at least 14 states (including Florida) had enacted Covid-19 related laws that barred employer vaccine mandates, school vaccine mandates, or vaccine passports. 

At a federal level, the vaccine mandate question is more complicated. With few exceptions, there are no laws that allow the federal government to issue a vaccine mandate to the general population. These exceptions include requiring proof of vaccination for immigrants requesting permanent resident status and vaccine mandates for military service members—allowing for certain exemptions. Recently, President Joe Biden ordered federal employees and contractors to attest to getting vaccinated or undergo weekly testing and other safety protocols. 

Several federal vaccine mandate actions are theoretically possible. The Executive Branch could cite Section 361 of the Public Health Service Act (or PHSA), which allows the Department of Health and Human Services or the Centers for Disease Control and Prevention (CDC) to make necessary measures “to prevent the introduction, transmission, or spread of communicable diseases from foreign countries into the States or possessions, or from one State or possession into any other State or possession.” 

Under the Constitution’s Spending Clause, Congress could provide financial incentives for states to enact mandates. It could also regulate vaccine requirements related to interstate travel under the Commerce Clause. But any federal actions to enforce or incentivize vaccine mandates may face legal challenges based on the 10th Amendment’s* prohibition on commandeering or forcing states to use their own resources to carry out federal policies. 

Another issue related to the termination of an employee-both private and public sector-is eligibility to receive unemployment benefits. Unemployment is available to employees who lose their jobs through no fault of their own. In most states, employees are not eligible for unemployment benefits if they are fired for violating a company policy, because it is considered misconduct. So if a company has a vaccination policy and the consequences for violating that policy are clear, the employee may be ineligible for such benefits unless the worker was exempt from the policy for medical or religious reasons. 

Refusing to get vaccinated may be akin to failing to adhere to another company safety protocol, such as a training requirement or refusing to take an employer-mandated drug test. However, the unemployment insurance agency likely will consider a totality of factors, such as whether the employee had a reasonable basis for refusing the vaccination. The agency may also look at whether the company policy was applied uniformly to similarly situated employees, as well as other extenuating factors. A critical factor is that the employer had a clear policy in place that the employee violated. The key is to tell employees in writing what is required and when they will be eligible for an exemption. 

Under most circumstances, an employer may require employees to be vaccinated against the coronavirus and provide documentation of such. Further, employees may be terminated for failing to comply with a company policy requiring vaccination, and unemployment benefits may be denied for misconduct. 

The bottom line is that employers need to consider medical and religious objections that are protected under the Americans with Disabilities Act and Title VII of the Civil Rights Act of 1964 and for public sector employers, consideration must be given to constitutional positions. Employers should explore reasonable accommodations for employees who refuse to get vaccinated for these reasons.

If you were subjected to unfair or discriminatory hiring practices, you may have a case against the employer who treated you unfairly. Certain questions and issues are off limits in a job interview. If you were asked invasive or inappropriate questions that you believe cost you a chance at a job, reach out to the Cherry Hill employment lawyers at Burnham Douglass. We can help you hold the employer accountable for illegally discriminating against you. Contact us online or call us at 856-751-5505 for a free consultation. We are located in Marlton and Northfield, New Jersey, and we serve clients throughout South Jersey, including Camden County, Burlington County, Atlantic County, Gloucester County, and Mercer County.