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February 22, 2021

Ask a Wrongful Termination Lawyer: Can My Employer Require I Get A COVID-19 Vaccine?

You may be wondering if it is “legal” for your California employer to mandate the COVID-19 vaccine as a condition of employment.  On December 16, 2020, the Equal Employment Opportunity Commission (EEOC) updated its COVID-19 guidance including exceptions employers must consider if they adopt a mandatory vaccination policy.[1] The EEOC recommends employers follow the most current information from public health authorities such as the Centers for Disease Control and Prevention (CDC). As new information becomes available the CDC continually updates employer COVID-19 related guidance, which provides recommendations focused on mitigating viral spread and maintaining a safe workplace.

The Federal Occupational Safety and Health Act requires employers to provide a safe workplace free of known hazards including, healthy working conditions, proper safety equipment, and training.[2] COVID-19 is a public health threat. Therefore, an employer does have the legal authority to implement a mandatory vaccination requirement to ensure the health and safety of all employees. Under the Americans with Disabilities Act, a mandatory vaccination requirement is also permitted provided it is “job related and consistent with business necessity.”[3]

For this reason, it is more likely that employees in the healthcare setting may be required to get the vaccine or risk termination of employment.  A number of cases have held that healthcare workers can be terminated for refusing the flu vaccine, which is FDA approved.

Employers can exclude from the workplace and maybe even terminate any employee who refuses the vaccine, with some exceptions. The employee must show they have a disability or a sincerely held religious belief that prevents them from getting vaccinated. If an employee refuses vaccination for either reason, employers with 15 or more employees, are required to provide a reasonable accommodation unless it would pose an undue hardship, meaning significant difficulty or expense.  The employer must determine if the employee poses a direct threat to the workplace and if any reasonable accommodations can eliminate or alleviate the threat, such as working from home.

Currently, there is no FDA approved vaccine to prevent COVID-19. The FDA has authorized the “emergency use” of the Pfizer-BioNTech and Moderna COVID-19 vaccine. Section 564 of the Federal Food, Drug, and Cosmetic Act states, “the FDA Commissioner may allow unapproved medical products or unapproved uses of approved medical products to be used in an emergency to diagnose, treat, or prevent serious or life-threatening diseases or conditions caused by CBRN (chemical, biological, radiological and nuclear) threat agents when there are no adequate, approved, and available alternatives.”[4] Furthermore, the EUA (Emergency Use Authorization) requires any person considering the vaccine to be educated on both the benefits and risks, ultimately leaving the decision making to the individual and their healthcare provider.

It remains legally unclear how, and if, an employer can mandate an employee vaccination requirement without formal FDA approval. Under the National Labor Relations Act, employees may attempt to refuse vaccination by reporting “safety concerns” regarding employment conditions. It is unlawful for employers to retaliate against employees who complain of unsafe or hazardous working conditions.[5]

During a pandemic, the EEOC said employers can ask employees about symptoms they may be experiencing associated with COVID-19. The identified virus-related symptoms must be determined by public health authorities.  For example, fever, chills, cough, shortness of breath etc. However, the Genetic Information Nondiscrimination Act (GINA) prohibits employers from asking employees medical questions about family members.[6] The employer is only entitled to know if an employee has had contact with anyone diagnosed with COVID-19. The ADA requires employers maintain all health-related and disability information regarding the employee’s illness as confidential and separate from their employee personnel file.

Since the U.S. Equal Employment Opportunity Commission has allowed companies to mandate the flu and other vaccines in the past, it is likely they will allow COVID-19 vaccines too. Nevertheless, if an employee suffers from an on-the-job injury as a result of an employer mandated vaccine requirement, the employee might be entitled to workers’ compensation.

Ask a Wrongful Termination Lawyer: Can My Employer Require I Get A COVID-19 Vaccine?

[1] EEOC, What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws (Dec. 16, 2020), https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws

[2] United States Department of Labor, Occupational Safety and Health Administration, Occupational Safety and Health Act of 1970 (Dec. 29, 1970- Jan. 1, 2004), https://www.osha.gov/laws-regs/oshact/completeoshact

[3] Americans With Disabilities Act of 1990, Pub. L. No. 101-336, 104 Stat. 328 (1990).

[4] Federal Food, Drug, and Cosmetics Act, as amended. Codified at 21 U.S.C. 301 et seq.

[5] National Labor Relations Act; 29 U.S.C. §§ 151-169

[6] Genetic Information Nondiscrimination Act of 2008, Pub. L. No. 110-233, § 2, 122 Stat. 881, 882.

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