Vaccinations. Movie stars, politicians, co-workers, neighbors, family members, even strangers all seem to have one thing on their minds. As Covid-19 variants begin to take hold across the world, the polarizing topic of vaccinations and how they intersect with the principles of social responsibility and individual freedoms have never been more important. Regardless of where one falls on the spectrum of the efficacy of these specific vaccines, it’s important to understand how the law is being applied, and how certain precedents are being set for the citizens of the United States of America.
Perhaps the most pressing question in the pantheon of recent vaccine discussions is whether employers have the legal right to require employees to get vaccinated. The short answer to this question is:
Yes. Employers do have the legal right to require an employee to be vaccinated. The slightly longer answer is that while employers have the right to require a vaccination, there are a few reasons why an employee may refuse, and in those instances, the employer is required to find ways to accommodate the employee, provided those accommodations don’t present “undue hardship” for the employer to meet.
While this may seem to be an over-reach by employers, the highly transmissive nature of Covid-19 and its variants are being used as justification for employers to provide a safe environment for all employees. It is important to remember that, while the Covid-19 vaccine is new, there are multiple instances in our everyday life where vaccine requirements are commonplace. For decades, most public schools require students to receive (or show proof of) certain vaccinations. And it is common for healthcare workers, depending on their role, to be vaccinated against certain highly transmissible and dangerous diseases as grounds for their employment. Of course, it is also important to note that these same vaccines have undergone rigorous medical and scientific testing before being widely distributed to the public – something the current Covid-19 vaccines have not been subject to, regardless of the recent FDA approval of the Pfizer vaccine.
Now that we’ve got all of the background out of the way, let’s talk about your rights as an employee if your employer mandates that you must get vaccinated. There are a few commonly asked questions I’d like to cover in order to help you be as educated and able to respond with appropriate options:
Q – Is it a violation of HIPAA for an employer to require proof of a Covid-19 vaccine?
A – No. HIPAA only applies to HIPAA-covered entities like healthcare providers, health plan providers, and healthcare clearinghouses. However, if you have a legitimate medical reason for not getting a vaccine, an employer may be in danger of violating the Americans With Disabilities Act of 1990 (ADA) if they force you to disclose a medical reason for not getting the vaccine. The ADA puts limits on how much an employer can make mandatory and that could ultimately force employees to reveal private information about mental or physical conditions.
Q – If my employer does require a Covid-19 vaccine, are there any circumstances where an employee can opt-out?
A – Yes. There are two key instances where an employee can refuse to be vaccinated. The first is when an employee has a pre-existing medical condition that would cause the vaccine to be harmful, the ADA stipulates that the employer must provide reasonable accommodations (more on that in a bit). The second is a religious exemption under Title VII, in which protections are in place to ensure no employee is discriminated against due to sincerely held religious, ethical, or moral beliefs.
Q – If I have an exemption under the ADA or Title VII, what does that mean for my employment?
A – Both the ADA and Title VII stipulate that employers are required to provide reasonable accommodations to employees with valid exceptions, provided the accommodation does not require undue hardship on the employer. In the case of Covid-19, some valid accommodations could be:
- Allow an unvaccinated employee to work from home, provided the entirety of their tasks could be accomplished within that set up
- Offer modifications to the employee workstation in order to reduce the potential of transmission of the virus
- Provide the employee with flexible hours to limit the amount of face to face interactions with colleagues
- Provide appropriate personal protective equipment (PPE) such as masks and hand sanitizer
The key to these arrangements is the term “undue hardship” for the employer. If an employer deems the accommodations to be detrimental to the working environment, or too limiting for the employee to be productive, they are able to pursue termination based on the original medical requirement for the vaccination.
It is also important to note that the U.S. Occupational Safety and Health Administration (OSHA) recently released new guidance in April that any adverse reactions to a Covid-19 vaccination is considered work-related and therefore must be recorded by the employer.
For those struggling with what to do when faced with an employer’s mandate to get vaccinated, it’s important to know what options they have. However, regardless of what the law states, a troubling division is being created between those who willingly rushed to receive one of the vaccines and those who aren’t convinced of the safety or effectiveness of the newly developed treatments. Even more worrisome is the rhetoric being used by political leaders who see the vaccine as a moral obligation to society. In fact, the discussion around vaccine mandates is straying further and further from data, and inching dangerously close to the desire to implement laws meant to enforce actions – by restricting the unvaccinated from engaging in fundamental parts of society. This week alone, we have seen influential pundits question whether those refusing the vaccine should have access to medical care. They’ve suggested that insurance companies either raise the rates for the unvaccinated or deny them outright. In France, grocery stores have begun hiring security to ensure unvaccinated patrons are not allowed to enter the store – in essence denying an entire subset of the population a basic human need.
Time will tell regarding the effectiveness of the Covid-19 vaccines. An FDA approval for one is indeed a positive sign. However, let us not allow our nation to get to the point where the ideologies of the few can be used to control the many. Today it may be to help people get a vaccine to help fight a pandemic. But the precedent set by these actions could easily usher in the foundations that enable an overreaching government to restrict the freedoms of a populace from questioning or limiting their power. May we never find ourselves driving down a road, the pavement of which was laid by “good intentions”.