Want to keep your job in 2021?
That may depend on whether you’re willing to be vaccinated against COVID-19.
Employment attorneys Peter Brown and Alex Volberding of the Los Angeles-based law firm Liebert Cassidy Whitmore say an employer can legally mandate the vaccine under the Americans with Disabilities Act and Title VII of the Civil Rights Act of 1964.
But there are exceptions.
“Employees with disabilities who can demonstrate that they cannot take the vaccine and employees with sincerely held religious beliefs that prevent them from being vaccinated can lawfully refuse it,” said Brown, a partner in the firm. “At that point, the employer would be obligated to go through the process to see if they could accommodate them.”
‘Undue hardship’ and workplace safety
Accommodations for those who cannot be vaccinated could range from situating the worker in an area away from other employees to having them work from home. If reasonable accommodations are not possible or present an “undue hardship” to the businesses and the worker still refuses to be vaccinated, the safety of the workplace would take precedence, Brown said. That could lead to an employee losing their job.
Some jobs don’t lend themselves to alternate work options.
A restaurant waiter who deals directly with the public, for example, wouldn’t be able to work from home. And a firefighter who works closely alongside fellow firefighters while responding to fires where the general public is present would also have limited options.
“If you say you can’t take the COVID-19 vaccine, but still want to come to work, you could be a direct threat to the health and safety of others which is not a reasonable accommodation,” Brown said.
COVID-19 cases on the rise
California is prioritizing vaccines for equitable distribution to people throughout the state and health officials expect to have enough supplies to vaccinate most Californians in all 58 counties by this summer.
Meanwhile, the infection count keeps ramping up.
On Wednesday, the state Department of Public Health reported 22,403 new cases of coronavirus, bringing the statewide total to 3,019,371. The agency’s COVID-19 death count for California stands at 34,433.
The U.S. Equal Employment Opportunity Commission provided updated guidance last month concerning COVID-19 in the workplace.
Americans with Disabilities Act (ADA)-covered employers can ask disabled workers if they are experiencing symptoms of the pandemic virus and also take their temperature, the commission said. But businesses can’t ask if other family members have COVID-19 or are experiencing symptoms of the virus.
ADA allows an employer to bar an employee from the workplace if they refuse to have their temperature taken or decline to answer questions about whether they have symptoms of the virus or have been tested for COVID-19.
Labor unions
Volberding, an associate with Liebert Cassidy Whitmore, said another issue comes into play when employees are represented by labor organizations.
“Being required to take a vaccine likely qualifies as a term or condition of employment,” he said. “The legal issue here is whether collective bargaining laws allow the employer to make the decision to require that employees receive the vaccine without having to bargain over the decision with the unions that represent the employees.”
Brown and Volberding say it’s unclear whether a relatively untested exception to bargaining requirements would apply given the emergency caused by COVID-19.
In the end, Brown said common sense will likely prevail.
“Unions have just as much interest in protecting their members as employers have,” he said. “But they also want to protect an employee’s right to say they don’t want to take the vaccine.”
