President Biden’s announcement last week that federal employees and contractors will be required to “attest” to their vaccination status is raising questions about employer vaccination policies. I’ll address a few of the most common ones here.*
Can my employer require me to be vaccinated as a condition of employment?
Generally speaking, yes. Absent a religious belief or a disability requiring accommodation, an employer may require that its employees be vaccinated. (A lot has been written elsewhere as to whether this is a good idea and the difficulties in enforcing such a policy, and I won’t reiterate those discussions here.)
Am I eligible for a religious or medical accommodation so that I may be exempted from a vaccination requirement?
The answer to this question naturally depends on the specific circumstances faced by the employee seeking an accommodation.
Employers are required to provide a religious accommodation to employees whose sincerely held religious beliefs, practices, or observances conflict with work requirements absent an undue burden on the employer. In the case of vaccination, an employee would need to demonstrate that a vaccination requirement conflicts with the employee’s religious beliefs, practices, or observances.
Employers are also required to reasonably accommodate employees who seek an accommodation for a disability, but again not if the accommodation would create an undue burden for the employer.
Under either scenario, the employer and employee must then engage in an interactive process to determine what reasonable accommodations may exist. It is important to note that an employee is not entitled to the specific accommodation asked for, only a reasonable accommodation that addresses the employee’s restrictions but allows them to continue performing their job duties. This is an analysis that requires discussion between the employer and employee about the employee’s limitations, possible accommodations, and the requirements of the position.
For example, an employee who is unable to be vaccinated due to an underlying medical condition may be accommodated in a number of ways depending on the nature of the position. An employee may be eligible for telework, if the position allows it; or, if the position requires the employee to be on-site, the employee may be accommodated by being required to wear a mask and be subjected to regular testing. Accommodations will depend greatly on the employee’s restrictions and the nature of the position, which makes this question particularly difficult to answer without greater detail.
Accommodations require a fact-intensive analysis and dialogue between the employee and employer. Please reach out to us if you need assistance in this area.
Can my employer make me disclose my vaccination status?
Practically speaking, an employer cannot — absent coercive tactics that would likely be illegal for other reasons — make an employee disclose anything the employee does not wish to disclose. But if the question is whether an employer may require disclosure of vaccination status and take adverse action against an employee if the employee refuses to disclose their status, then: yes.
Isn’t my vaccination status covered by HIPAA?
Yes and no. HIPAA applies to covered entities, namely health care providers and their business associates. HIPAA does not apply to non-covered entities, including employers, schools, etc.
Moreover, even if HIPAA did apply to employers, there is no private right of action under HIPAA. In other words, you cannot sue a HIPAA-covered entity for an improper disclosure; you would have to file a complaint with either the covered entity or the Department of Health and Human Services.
If you have questions or need assistance navigating this area of employment law, please reach out to Tava Employment Law here. I welcome your suggestions for future topics as well.
*As always, subject to the usual disclaimers:
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