A shingles vaccine is drawn with a needle from a clear vial, now covered by the inflation reduction act, or ira

28 Oct Are COVID-19 Vaccine Mandates Legal? Are there exceptions?

Posted at 19:54h in Cancer-Related Legal Issues, COVID-19, Employment by

As more employers require their employees to get vaccinated, the federal government’s requirement for larger employers to have vaccine mandates moves forward, and schools are considering vaccine requirements for students, you might be wondering: are COVID-19 vaccine mandates legal?

The Centers for Disease Control & Prevention (CDC) has indicated that COVID-19 vaccines are safe and effective. And, the CDC recommends that everyone aged 12 years and older get the COVID-19 vaccine. The CDC is also likely to approve vaccinations for children 5-11 years old, in the next week or so.

However, there may be medical reasons why your doctor might recommend that you do, or don’t, receive the vaccine. Individuals who are immunocompromised have been prioritized for vaccines, because of the danger of COVID-19. If you are immunocompromised and concerned about the safety of the vaccine, you can learn more from the CDC.

Can an employer legally require COVID-19 vaccinations?

Yes. However, employers are required to comply with federal and state laws that may offer exceptions to the mandate.

Can I ask for an exception from the COVID-19 vaccine mandate?

Your employer may have a specific process for requesting an exception to the vaccine mandate. Make sure to follow your employer’s rules.

Under federal law, there are two potential ways to request an exception from the vaccine mandate:

  1. Medical Condition: An individual may not be able to get vaccinated due to a medical condition.
    • Americans with Disabilities Act (ADA) – the ADA prohibits discrimination against individuals with disabilities and gives individuals with disabilities the ability to request reasonable accommodations. A reasonable accommodation can be anything that is reasonable and helps an employee to do their job.
    • Employees who are unable to receive the COVID-19 vaccine for medical reasons may be able to ask for an exception to the mandate as a reasonable accommodation under the ADA. But, not all employers are covered by the ADA.
    • This is a highly individualized process. Your employer may be able to request more medical information to understand how your medical condition is related to your inability to get vaccinated.
    • Things employers will consider:
      • Would granting you an exception to the vaccine mandate be a “direct threat” to the health or safety of your workplace? Currently, an employer may reasonably be able to determine that returning to work unvaccinated would be a direct threat.
      • If returning to work unvaccinated is determined to be a “direct threat,” are there steps that could be taken to reduce the threat? This is a fact-specific decision based on your job duties and workplace.

 

For more information on reasonable accommodations under the ADA, read our Quick Guide to Reasonable Accommodations.

Your state may have additional laws related to vaccine mandates and employment. For more information on which states have fair employment laws similar to the ADA and cover smaller employers, see our chart of state laws.

  1. Religion: An individual may be unable to get vaccinated due to their sincerely held religious belief, practice, or observance.
  • Title VII of the Civil Rights Act of 1964 – Title VII prohibits discrimination based on certain categories, including religion. Title VII applies to private employers with 15 or more employees and government employees.
  • But, this does not necessarily require that your employer immediately give you a religious exception. If your employer is concerned about the nature or sincerity of the belief, they can request additional information.
  • If you demonstrate a sincerely held religious reason, your employer has to consider a reasonable accommodation under Title VII. However, if the accommodation would have more than a minimal cost or burden to your employer, they may be able to deny the request.
  • Title VII does not cover your social, political, economic, or personal preferences

 

For more information, review Section K.

Your state may have additional laws related to vaccine mandates and employment. Contact your state fair employment agency for more information. State agencies can be found here: TriageCancer.org/StateResources.

I have been diagnosed with cancer and am concerned about getting the vaccine. Does my employer have to grant me an exception to a COVID-19 vaccine mandate?

  • No, your employer may not have to grant the exception. The process of requesting, and potentially receiving, a reasonable accommodation is highly individualized. What is considered reasonable will depend on your job duties and your workplace.
  • If your doctor recommends that you should not get vaccinated, you should work with your doctor to provide an explanation of why you are unable to safely receive the vaccine. Then you should consider potential reasonable accommodations that would be appropriate. For example, could you work from home?
  • Your employer may consider that:
    • The CDC has recommended that all individuals over 12 receive the COVID-19 vaccine. There is a narrow exception to this recommendation for individuals who are allergic to specific ingredients in the COVID-19 vaccines, those who received severe allergic reactions to the first dose, or a reaction to the first dose within four hours.
    • The CDC has issued a recommendation that all immunocompromised individuals should get the COVID-19 vaccine and receive a booster shot.


If I get an exception, can my employer place me on leave?

  • This is a rapidly changing area of the law as the COVID-19 pandemic continues. Employers have placed unvaccinated employees on unpaid leave, but the EEOC has suggested that this should only be used if other accommodations are not possible.


How long will my exception last?

  • It depends. Reasonable accommodations can be reviewed based on an employee’s medical condition and needs.
  • For example, there may be a medical reason why you are currently unable to get the vaccine. However, your health care provider says that once that reason is resolved, or after a certain time period, it is safe for you to get the vaccine. So, under the ADA, your employer would not have to permanently provide an exception.


Does asking about, or requiring proof of, my vaccination status violate my privacy rights?

No. Your employer can ask if you have been vaccinated.  For more information about HIPAA and vaccine privacy, read our blog.

If I am in a union, is my employer allowed to require COVID-19 vaccines?

  • It depends on the specific terms of the collective bargaining agreement.
  • Many collective bargaining agreements have a rule allowing an employer to impose workplace health and safety rules without prior notice to the union. A COVID-19 vaccine mandate would likely fall under this rule. If your collective bargaining agreement has this rule, your employer may be able to mandate COVID-19 vaccines.
  • Even without this rule, your employer may still be able to lawfully mandate COVID-19 vaccines. The employer would likely have to notify the union of the policy and bargain with the union on how the mandate will be implemented. For example, the employer may bargain with the union on time off for vaccination, when union members must be vaccinated by, and consequences of refusing vaccination.


For more information about COVID-19 vaccines:


About Triage Cancer

Triage Cancer is a national, nonprofit providing free education to people diagnosed with cancer, caregivers, and health care professionals on cancer-related legal and practical issues. Through events, materials, and resources, Triage Cancer is dedicated to helping people move beyond diagnosis. For more resources on cancer and COVID-19, visit triagecancer.org/covid-19.

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