With many states declaring flu epidemics and with the spread of other communicable diseases, many employers, particularly in the health care industry, are requiring employees to receive vaccinations. Employees rightfully have concerns about being forced to receive a vaccination and so a common question is whether employers can force employees to be vaccinated against the flu or other diseases. Like most legal questions, the answer is not so simple. Today’s Long Island employment law blog explores the issue of whether employers can require employees to be vaccinated.
The starting point to many employment law questions is the fact those most states, including New York, are employment at will states. Employment at will means that employers can hire or fire employees for nearly any reason at all, as long as the reason is not unlawful. Unless the employee was able to negotiate a contract which sets the terms of employment, employees generally remain at will so employers are free to impose all kinds of conditions on employment. One of the conditions an employer may place on an employee is that the employee be vaccinated against diseases, such as the flu. An employee may refuse to accept the vaccination, but in most cases, because the employee is “at will” the employer may fire the employee for not complying with a vaccination policy.
In sum, because many employees are “at will” and can be terminated for any reason, employers are generally free to require that their employees be vaccinated against certain diseases. That is unless an exemption to the general rule applies. These exemptions are discussed below.
Employment at will can be altered in workplaces where the workforce is unionized. Unions typically negotiate contracts which set the terms and conditions of employment for members of the union. Usually, these terms include pay structure, vacation, health insurance and other benefits, sick leave, disciplinary procedures, and work hours. Unions, however, may also negotiate other terms such as whether the employer can require vaccinations. If you are a union member, you should speak with you union about whether your contract allows the employer to require employees receive vaccinations.
Title VII of the Civil Rights Act prohibits discrimination based on, among other things, religion. State and Local laws, like the New York State Human Rights and the New York City Human Rights law, also prohibit discrimination based on religion. These laws require that employers make reasonable accommodations for employees’ sincerely held religious beliefs. So, if by receiving a vaccination an employee believes he or she would be forced to violate a sincerely held religious belief, the employee may request a reasonable accommodation. In a hospital setting, such accommodations for a vaccination may include a mask and/or counseling with how to minimize the spread of infectious diseases. Many employers should have procedures in place to allow their employees to make requests for accommodations, but it may also be best to consult with an experienced employment lawyer to discuss your situation first. The employer will likely review the stated religious belief to determine whether it believes an accommodation is appropriate. An experienced employment lawyer can help you articulate the religious belief in a way more likely to trigger accommodations.
The Americans With Disabilities Act prohibits discrimination based on an employee’s disability. Like religion, State and Local laws similarly prohibit discrimination based on a disability. A disability does not need to be completely disabling. Rather, many medical conditions may constitute a disability under the disability statutes. If an employee has a medical condition which prevents the employee from receiving a vaccination, the employee can request an accommodation like under the religious exemption.
The third statute which may protect employees from required vaccinations is the Pregnancy Discrimination Act . Like disability and religion, the Pregnancy Discrimination Act requires that employees make certain accommodations for pregnant employees. Pregnancy employees should be prepared to articulate a particularized danger in receiving a vaccination and not just generalized fear. An experienced pregnancy discrimination lawyer can discuss your particular situation and advice you accordingly.
In sum, most employees will likely be subject their employer’s vaccination requirement. Notably, generalized beliefs about the medical dangers of a vaccine or social or other generalized beliefs about vaccinations unrelated to religion are not enough to trigger protections or accommodations. Like most legal questions, the issues related to forced vaccinations are specific to each situation. Today’s blog should not be used as legal advice, but merely as general information about workplace vaccinations. If you have a particular issue or question concerning workplace vaccinations, contact an experienced Long Island employment lawyer at Famighetti & Weinick, PLLC. Our phone number is 631-352-0050 or visit us on the internet at http://linycemploymentlaw.com.
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