This story was first published on December 21, 2020.
During the coronavirus pandemic, some New Jersey residents were able to work from home.
But because vaccination efforts are still popping up in the state, officials say we are probably only a few months away from the widespread availability of vaccine. It can be a game changer for employees who are months away from the office.
It also raises many questions.
Employers are expected to keep their workplaces safe, but what if some workers do not want to take a vaccine? Can your boss need it? What if you take the vaccine but your colleagues do not? Do you have any rights?
This is what you can expect.
Can my employer require me to be vaccinated against the coronavirus?
Yes.
The Employment Commission (EEOC) recently issued guidelines expected by labor law experts. The Americans with Disabilities Act (ADA), which grants workers some rights when it comes to an employer requiring certain medical examinations, is not applicable to COVID vaccinations.
“If an vaccine is administered by an employer to an employee to protect against the contracting of Covid-19, the employer does not seek information about the individual’s disabilities or current health status, and is therefore not a medical do not investigate, “EEOC said on its website.
It is said that the requirement of a COVID vaccine is allowed.
Employers have an obligation to ensure that their employees have a healthy and safe working environment, said Dennis Alessi, a partner and co-chair of the labor law group at Mandelbaum Salsburg in Roseland.
“It is based on this obligation that employers are allowed to require employee tests for COVID-19,” Alessi said, noting that he expects the EEOC decision that employers would have the right to require vaccinations from employees.
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Employers may need vaccines if the failure to vaccinate will pose a direct threat to other employees, agreed Timothy Ford, a partner and member of the Department of Labor and Litigation in Einhorn, Barbarito, Frost & Botwinick in Denville. .
But that does not mean employers should be in a hurry to introduce new vaccine rules.
“Since the Pfizer vaccine has only received emergency clearance, employers should be reluctant to instruct until the Food and Drug Administration (FDA) has extended authorization to its standard approval, indicating that it is effective.” Ford said.
Are there exceptions for certain workers?
Yes.
The EEOC said employees could be exempted from a mandatory vaccine if the employee had a covert disability under the Americans with Disabilities Act (ADA) that prevented them from taking the vaccine, Ford said.
There are other exceptions.
Ford said an employee could potentially be exempted from the vaccine requirement under the provisions of Title VII of the Civil Rights Act of 1964, which could cover religious and other exemptions.
“These are usually the exceptions to certain vaccinations like flu shots,” Ford said.
He said that using the “direct threat” standard, these exceptions, especially in certain industries, may not apply.
“Healthcare providers, teachers, nurses and senior care workers are widely expected to be given the mandate to get the vaccine,” he said.
Alessi said there may also be exceptions for employees who have underlying medical conditions, such as severe allergic reactions, which appear to be a problem for several people using the Pfizer vaccine.
“We expect employers to be entitled to require employees to provide medical documentation to be eligible for this exception,” he said.
What if my boss does not need it? Can I be fired if I do not want to work with inexperienced co-workers?
You have options.
Ford said COVID-19 presented many unprecedented challenges to employers, but the case of every employee has variables and needs to be addressed on a case-by-case basis.
There may also be different circumstances depending on the job and the industry.
“In general, an employer can terminate an employee because of his or her refusal to meet the requirements of his or her position and / or failure to be at work,” Ford said. “However, if an employee has a recognized disability under the New Jersey Law Against Discrimination or ADA, which will affect his or her ability to return to work in an environment with unvaccinated employees, the employee is quite necessary. ”
Plus, he says, executive orders from the government need Phil Murphy, where possible, for non-essential businesses.
According to Alessi, employees can file a complaint under the Occupational Safety and Health Act (OSHA) and say the employer creates an unsafe, unhealthy work environment because the employer does not require all employees to be vaccinated for COVID-19.
“If the employee is fired for filing such a complaint, the employee is likely to have a claim for retaliation for exercising his or her rights under OSHA,” Alessi said.
If I have to provide proof of a vaccine, is it not a violation of privacy?
Yes, it’s a violation of privacy, Alessi said.
“However, employers may infringe on the privacy of employees by requiring COVID-19 testing,” he said, pointing out that a vaccine requirement would be a continuation of the employer’s obligation to maintain a safe and healthy work environment. “
Vaccines have already been needed in some industries, according to Ford, such as the flu vaccine.
“A vaccination certificate may be required, which limits the information provided,” he said.
Even if an employer can order a vaccine, that does not mean an employer has to do it, Ford said.
“Employers may not want to lose valuable employees because of their refusal to be vaccinated, especially not in the early stages of vaccination and its implementation under an emergency use authorization,” Ford said.
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Karin Price Mueller can be reached at [email protected].