Timothy J. Ford Quoted In NJ.com Article, “Can Employers Require Workers To Take The Coronavirus Vaccine?”December 22, 2020
Employers may require vaccines if the failure to vaccinate will result in a direct threat to other employees, agreed Timothy Ford, partner and member of the employment and litigation departments at Einhorn, Barbarito, Frost & Botwinick in Denville.
But that doesn’t mean employers should be in a rush to institute new vaccine rules.
“As the Pfizer vaccine has only received Emergency Use Authorization, employers should be reluctant to mandate until after the Food and Drug Administration (FDA) expands authorization to its standard approval, indicating it is effective.” Ford said.
Are there exceptions for certain workers?
The EEOC has said that employees may be exempt from a mandatory vaccine if the employee has a covered disability under the Americans with Disabilities Act (ADA) that prevents them from taking the vaccine, Ford said.
There are other exceptions.
Ford said an employee may be excused from the vaccine requirement under the religious accommodation provision of Title VII of the Civil Rights Act of 1964, which could cover religious and other exemptions.
“These are generally the exceptions for certain vaccinations like the flu shot,” Ford said.
He said using the “direct threat” standard, these exceptions, particularly in certain industries, may not apply.
“It is widely anticipated that health care providers, teachers, nurses and senior care employees will be mandated to get the vaccination,” he said.
If I have to show proof of a vaccine, isn’t it an invasion of privacy?
“However, employers were permitted to invade employee privacy in requiring COVID-19 testing,” he said, noting that a vaccine requirement would be a continuation of the employer’s obligation to maintain a safe and healthy work environment.”
Vaccines are already required in some industries, Ford said, such as the flu vaccine.
“A certificate of immunization may be required, limiting the information provided,” he said.
Even if an employer can mandate a vaccine, that doesn’t mean an employer should, Ford said.
“Employers may not want to lose valuable employees based on their refusal to be vaccinated, particularly in the early stages of the vaccination and its implementation under an Emergency Use Authorization,” Ford said.