Lindsey Conrad Kennedy, a labor and employment attorney with Eckert Seamans Cherin & Mellott LLC, lays out the legal framework under which employers can mandate that employees take the COVID-19 vaccine — with exceptions.
As the law currently stands, employees may require workers to take the COVID-19 vaccine when it becomes available, “subject to certain limited case-by-case exceptions for disability or religious-related reasons,” Kennedy says. The Americans With Disabilities Act (ADA) provides guidelines for determining whether a disability is serious enough to justify an exception, although the language in the law is broadly drafted and “very employee-friendly.” Whether an employee’s avowed fear of a negative reaction to the vaccine constitutes an acceptable disability under the ADA “is one of the million-dollar questions right now,” Kennedy says. A similar lack of clarity accompanies claims for an exemption on the basis of religious beliefs, and determining an employee’s sincerity in that regard can be tricky. Merely stating a moral or political stance that isn’t based in religion is legally insufficient, Kennedy notes, so “employers will be struggling to ferret out what is a sincerely held religious belief and what is not.” Courts ruling on similar cases in the past have come to different conclusions.
Beyond determining whether they can mandate the taking of a vaccine, employers need to decide whether they should do it. Multiple factors go into making such a determination, Kennedy says, adding that many employers today “are strongly encouraging employees to get the vaccine, rather than require it.” There’s also the risk of legal action by employees who claim to have suffered serious side effects from a vaccine that they were “forced” to take, as well as from those who assert that they caught the virus in the workplace because some other employees were allowed to forego the shot.
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