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Can I Be Fired for Not Getting a COVID Vaccine?

Posted by Jamison Mark on Dec 21, 2022 3:04:00 PM

covid vaccine

As of the end of November 2022, more than 80% of people in the U.S. had received at least one dose of the COVID-19 vaccine, and 68.8% were considered fully vaccinated. Thanks in part to widespread vaccination, COVID-19 outbreaks and COVID-related deaths have dwindled. One of the factors that has fueled this high vaccination rate is employer mandates. While many people are willing and able to comply, for others, it’s not so simple. Federal and New Jersey law provide protections for these employees. Read on to learn what you need to know about your right to refuse your employer’s vaccine mandate.

Can employers require COVID-19 vaccines?

There is no federal or New Jersey law that prevents employers from requiring their employees to be vaccinated. Mandatory vaccination has a long history in U.S. public health, dating back to the smallpox vaccine mandate in the early 19th century, and the practice has been routinely upheld in the courts. At the same time, however, employers’ rights to enforce mandates are limited. The law protects employees who refuse vaccination because of medical or religious reasons.

What if my doctor says I shouldn’t get the vaccine?

Employees who have medical reasons for refusing vaccination are protected by the New Jersey Law Against Discrimination (NJLAD) as well as the Americans with Disabilities Act (ADA) and Title VII of the Civil Rights Act. Examples of common medical exceptions include allergic reactions to vaccines, some chronic illnesses, breastfeeding, and pregnancy-related conditions. If your doctor advises you not to get the vaccine, the law provides protection. While the federal statutes are enforceable only against government entities and businesses with at least 15 employees, the NJLAD applies to all New Jersey employers.

What if getting the vaccine is against my beliefs?

New Jersey and federal laws also protect employees whose “sincerely held religious belief, practice, or observance” prevents them from receiving a vaccine. While the vast majority of widely practiced religious faiths and denominations have no prohibition against vaccination, some explicitly do. Membership in these faith groups are not a requirement to claim religious exemption from vaccination, however. Equal Employment Opportunity Commission (EEOC) guidance states,

Religion includes not only traditional, organized religions…, but also religious beliefs that are new, uncommon, not part of a formal church or sect, only subscribed to by a small number of people, or that seem illogical or unreasonable to others…. An employee’s belief, observance, or practice can be “religious” under Title VII even if the employee is affiliated with a religious group that does not espouse or recognize that individual’s belief, observance, or practice, or if few—or no—other people adhere to it.

While employers are allowed to ask an employee to explain how their religion conflicts with a vaccine requirement, they are directed not to assume that an assertion of religious belief is insincere simply because an employee has newly adopted a set of religious beliefs or adheres inconsistently to the guidelines of their professed faith. In short, it could be very difficult for an employer to push back against an employee’s assertion of sincerely held religious belief.

Can my employer fire me for being unvaccinated?

If you’re entitled to protection under the NJLAD, Title VII, or the ADA, your employer must reasonably accommodate your continued employment despite being unvaccinated unless they can show doing so would create an undue hardship for the business. What level of disruption constitutes an undue hardship is determined on a case-by-case basis, considering factors such as the size of the business, the nature of the employee’s duties, the cost of accommodation, and its overall impact on operations. An office employee who can easily be accommodated by being provided with personal protective equipment or allowed to work remotely, for example, will be situated very differently from a person who works directly with patients in a healthcare setting, where their vaccination status could have an enormous impact on the workplace and those it serves. If an employer is unable to reasonably accommodate the continued employment of an unvaccinated employee, then they may terminate them.

The likelihood of gaining a workplace accommodation may also depend, in part, on what type of exemption the employee claims. Federal guidelines make it easier for employers to claim undue hardship when being asked to accommodate religious belief than when employees request accommodation for a disability; in the case of religious objections, any accommodation that would result in more than a minimal cost to the employer may be considered an undue burden. In many cases, however, accommodations may create little or no additional cost for employers.

What should I do if I think I’ve been wrongfully terminated?

If you’ve been illegally fired as a result of your vaccination status, an experienced employment attorney can help you protect your rights. Depending on whether your complaint is covered by federal law, the NJLAD, or both, your claim may be investigated by the EEOC, the New Jersey Division on Civil Rights, or as a coordinated effort. To recover full compensation, however, you may need to file a lawsuit. If you believe you’ve been wrongfully terminated from your job, speak with a trusted local attorney who has proven experience pursuing employment claims.

 

Resources

Centers for Disease Control and Prevention. Impact of Vaccination on Risk of COVID-19–Related Mortality. Updated November 16, 2022. https://www.cdc.gov/coronavirus/2019-ncov/covid-data/covidview/index.html.

Civil Rights Act of 1964. https://www.eeoc.gov/statutes/title-vii-civil-rights-act-1964

Department of Health and Human Services. Civil Rights Requirements- E. Federal Employment Discrimination Laws. Reviewed October 27, 2021. https://www.hhs.gov/civil-rights/for-individuals/special-topics/needy-families/federal-employment-discrimination

Equal Employment Opportunity Commission. The ADA: Your Responsibilities as an Employer. Accessed December 5, 2022. https://www.eeoc.gov/publications/ada-your-responsibilities-employer

Equal Employment Opportunity Commission. Section 12: Religious Discrimination. Published January 15, 2021. https://www.eeoc.gov/laws/guidance/section-12-religious-discrimination - h_12929403436951610749878556

Equal Employment Opportunity Commission. What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws. Updated July 12, 2022. https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws#L

Meuller KP. What can my employer do if I refuse a COVID vaccine? NJ.com. Published August 29, 2021. https://www.nj.com/coronavirus/2021/08/what-can-my-employer-do-if-i-refuse-a-covid-vaccine.html

Moghadas SM, Vilches TN, Zhang K, Wells CR, Shoukat A, Singer BH, Meyers LA, Neuzil KM, Langley JM, Fitzpatrick MC, Galvani AP. The impact of vaccination on COVID-19 outbreaks in the United States. medRxiv [Preprint]. 2021 Jan 2:2020.11.27.20240051. Update in: Clin Infect Dis. 2021 Dec 16;73(12):2257-2264. PMID: 33269359; PMCID: PMC7709178. http://dx.doi.org/10.1101/2020.11.27.20240051

Nobile T. Can your employer make you get a COVID vaccine? NJ legal experts weigh in. NorthJersey.com. Published August 4, 2021. https://www.northjersey.com/story/news/2021/08/04/can-nj-businesses-require-covid-vaccine-employees/5465396001/

Rothstein MA, Parmet WE, Reiss DR. Employer-Mandated Vaccination for COVID-19. Am. J. Public Health 111(6) June 1, 2021: pp. 1061–1064. https://doi.org/10.2105/AJPH.2020.306166

Vanderbilt University Medical Center Occupational Health Clinic. Immunizations and Religion. Published August 2013. https://www.vumc.org/health-wellness/news-resource-articles/immunizations-and-religion

Topics: Employment Law, COVID-19

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