Can Your Boss Force You to Get a COVID-19 Vaccine?
COVID-19 vaccinations are finally here – at least for the elderly and healthcare workers. And soon, hopefully, the rest of the population will be able to get in line for our shots. But not everyone is excited about getting the COVID-19 vaccine.
Our experienced Long Beach workers compensation attorneys have recently been asked if an employer can require an employee to get a vaccination – or if “No shot, no job?” is actually an illegal employment practice.
Like everything else related to COVID-19, this is uncharted territory – so the answer is not clear cut. In this article our experienced attorneys discuss the implications of an employer requiring employees to obtain a vaccination as a condition of employment.
Requiring Employee COVID-19 Vaccinations
Right now, most (but not all) legal experts and attorneys seem to agree that the answer to this question may first and foremost may depend on the type of employment.
For example, employers in the health care industry may have both greater rights and greater needs to require employee vaccination, than say an employer in the construction industry.
In other words, an employer may have the right to require COVID-19 vaccinations if it can be demonstrated that failing to get the shot would create an undue hardship on the employer and/or pose a direct health threat to other employees working around that person.
Precedent for Mandatory COVID-19 Vaccinations
Mandatory vaccinations have long been upheld in certain industries, under circumstances other than COVID-19. For example, mandatory flu vaccines in the health care sector are accepted as valid.
Similarly, hepatitis vaccination is obligatory as a condition for anyone who works in the wastewater treatment industry. And many States require a Hepatitis A vaccine for childcare workers. So, there is strong precedent for mandating vaccinations in certain industries.
For this reason it seems clear to many legal experts that employers can require the COVID-19 vaccination.
OSHA & COVID-19 Vaccines
Another consideration in figuring out the answer to this complex question is OSHA requirements. Cal/OSHA requires all employers to create a safe workplace. But does this included protecting workers from infection by requiring all co-workers to receive the vaccine?
Cal/OSHA has already created several COVID-19 related requirements, including having a site-specific written COVID-19 prevention program. But at this point the new COVID emergency regulations do not mandate vaccinations. However, if an employee does not take sufficient steps to curb the virus in the workplace, the employer could be cited by OSHA or Cal/OSHA.
Exceptions to Employers Requiring COVID-19 Vaccines
If an employer requires their workers to be vaccinated, two very limited exceptions would still apply.
Religious accommodation – a “sincerely held religious belief” – might enable an employee to decline the vaccine if they can be “accommodated”. For example, perhaps the unvaccinated employee could work remotely or in an area where he/she does not come in contact with other employees.
A second, very limited, exception would be vaccine exemption for employees with medical concerns or a disability that requires them to avoid receiving the vaccine. The Americans with Disabilities Act (ADA) also requires “reasonable accommodation” upon request by a person with a disability or medical condition. An example, perhaps, might be a pregnant worker for whom vaccination may not be proven safe.
However, proving that an underlying health condition precludes receipt of a vaccination, is up to a health care provider to determine – and is not just based on the “opinion” of the employee.
Long Beach Disability Lawyers
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