The last year and a half has been incredibly challenging for everyone with the advent of the COVID-19-19 virus. Everyday there is new information and rigorous debate regarding the COVID-19-19 virus and how it should be handled. With the constantly shifting landscape of information, misinformation and personal, scientific, religious and political opinions, it can feel like we are taking one step forward and two steps back as we all try to stay healthy, safe and happy.
The issue of vaccination and how it is addressed in schools and the workplace is a rapidly changing issue with many moving parts. This article is not about whether you should or should not get a COVID-19 vaccination but what your legal rights are at this time in relation to being vaccinated or unvaccinated.
Is it legal for my for my job to ask for proof of COVID-19 vaccination?
There is no federal (national) law in place at this time mandating that you must provide proof of COVID-19 vaccination to your employer. There is also no federal law in place making it illegal for your employer to ask for proof of vaccination.
If your employer asks for proof of vaccination, they cannot request that you provide any personal medical information along with it, just for proof that you had received the COVID-19 vaccination. If you got a COVID-19 vaccination you were provided with a COVID-19 vaccination card, this card is the patient’s personal proof of vaccination.
There is currently rigorous social debate as to whether or not someone outside the health care industry asking to see proof of vaccination is a HIPPA violation. HIPPA is actually much more narrow than many people know and it largely applies to health-care providers protecting your medical information. There is no law “on the books” so to speak to make asking to see the vaccination card illegal.
Generally speaking, if the employer keeps the question narrow, just asking to see proof of vaccination, they are not stepping outside the law…if the employer asks for more than is strictly necessary to answer the question it could be an issue, for example if the employee is unvaccinated and the employer asks why the employee is not vaccinated. The Equal Employment Opportunity Commission (EEOC) stated that an employer can ask about your vaccine status and it is not a medical inquiry, but it has to end there, the employer cannot ask follow up questions or pursue the matter further. Additionally the employer cannot ask any questions that might be a violation of the Americans with Disabilities Act.
Is it legal for my job to require a COVID-19 vaccine?
In Spring 2021 the EEOC released a statement that federal nondiscrimination laws (including Title VII, Americans with Disabilities Act) do not prohibit an employer from requiring that all employees returning physically to the workplace have a COVID-19 vaccination for work subject to certain exemptions. What that means is, as far as federal law is concerned, if an employer requires a COVID-19 vaccination for employees who will be physically present in the workplace and they do not meet the requirements for an exemption, the employer can require that the employee be vaccinated. Here is a brief explanation of what is an exemption under federal law.
Exemptions: Medical or Religious
If the employee can show evidence that getting a COVID-19 vaccination would affect their health, based on a disability, they might be entitled to an exemption under the Americans with Disabilities Act.
If the employee can show that they have a sincerely held religious belief, practice or observation that prevents them from receiving a COVID-19 vaccination, the employer must provide reasonable accommodation to that employee unless it would pose an undue hardship on the operation of the owners business under Title VII of the Civil Rights Act of 1964 (for businesses with 15 employees or more).
Showing that you qualify for an exemption requires proof and can take time. An example of an employer making reasonable accommodation for an employee under these laws would be requiring the employee to remain masked and maintain social distancing while in the physical workplace. Another example of reasonable accommodation would be requiring that the exempted employee undergo periodic COVID-19 tests.
Is it legal for my job to require a COVID-19 vaccine for travel related to work?
It is legal for an employer to require COVID-19 vaccination as a condition for working for them. If your job description includes work related travel, your employer can require that you get vaccinated, especially if you split your time between travel related work and being physically in the workplace.
Is it legal for my employer to mandate the COVID-19 vaccine?
There is some argument that is it illegal for an employer to require a non-exempt employee to receive a COVID-19 vaccination, which is still considered an experimental drug, under FDA guidelines. The US Department of Justice has released a statement that as long as the employee knows that getting the vaccine is voluntary, the employer has the right to require the employee be vaccinated. In other words, they can’t “make” you get the shot but they don’t have to keep you on as an employee either.
Existing Employee vs. New Hires:
All new hires automatically fall under having the vaccine as a condition for employment according to federal law. A lot of people ask, “I’ve been with this company for 20 years, how can they require me to get a shot I don’t want?” The law at this point is clear, existing employees can be required to get a vaccination.
If the employee objecting to the vaccine requirement is a member of a union, the employer may need to bargain with the union and reach an agreement prior to attempting to make COVID-19 vaccination a workplace requirement. If you have an employment contract with your company, they may be required to renegotiate it depending on the terms of the original contract.
How Can I (Discretely) Check if my Employer Requires the COVID-19 Vaccine?
If your employer has a public website or an online HR portal, it would be best to start there. You may be able to passively collect information on your company’s position towards mandatory vaccination without being detected or engaging in potentially uncomfortable conversations with management.
If an employer decides to mandate COVID-19 vaccination, it should really have a written policy in order to ensure that the position of the company is clear and understandable to all employees. That written policy should be made easily available to all employees and provide a contact who can answer questions. The company policy should be available contemporaneously with any announcement that your employer is going to make a COVID-19 vaccine mandatory for all employees.
Something to keep in mind is if your employer currently has incentives in place to encourage employees to get the COVID-19 vaccine. If the incentive plan is working then your employer might choose not to create a mandate. If the incentive plan is not working then it could indicate which way the wind is blowing in regard to a companywide vaccine mandate and you can plan accordingly.
If your company is publicly traded you might be able to access minutes from the last shareholder meeting to see if a COVID-19 vaccine mandate has been discussed and possibly voted on. If the company has a public website, you may be able to locate minutes from the last board of directors meeting directly from the site.
If you do not want to get the shot it could be worth your time to take your concerns to your employer and ask if there is anything you can do to keep your job with them but not get the shot. Generally speaking most employers tend to want to keep their trained and experienced employees and the hiring process is a time consuming gamble. A frank conversation with your employer may lead to an acceptable compromise, for example remote work, taking a different shift or agreeing to regular testing. At any rate, if it does end up becoming an issue that is litigated, you will be able to show that you attempted to reach resolution with the company prior to filing any lawsuit.
How Can I (Discretely) Check if My Illinois Employer Requires the COVID-19 Vaccine?
Currently there is no official list of employers in Illinois that require the COVID-19 vaccine as a condition for employment. Generally the companies that have created a COVID-19 vaccine mandate make a public announcement that is picked up by and circulated by the internet. A simple Google search could reveal if your Illinois employer requires or plans to require a COVID-19 vaccine for employees.
How can I (Discretely) check if my Iowa Employer Requires the COVID-19 Vaccine?
There is no official list of Iowa employers that require the COVID-19 vaccine as a condition for employment. Your best bet is to do a Google search or to look at your Iowa employers website for more information.
How Can I (Discretely) check if my Wisconsin Employer requires the COVID-19 Vaccine?
Some state employees are now required to get the COVID-19 vaccine or undergo weekly testing. Several Wisconsin healthcare providers are also requiring their employees get the COVID-19 vaccine. Check your employers website or run a Google search for Wisconsin companies requiring the COVID-19 vaccine. There is no official list of Wisconsin employers requiring the COVID-19 vaccine at this time.
How Can I (Discretely) check if my Indiana Employer requires a COVID-19 Vaccine?
There is no official website listing which Indiana employers currently require having the COVID-19 vaccine as a condition for employment. You can try the general suggestions above or you can check your employer’s website. Typically if a larger employer is mandating the vaccine they make a public announcement, for example Indiana University Health will require its employees to be vaccinated by September 1, 2021 unless they qualify for an exemption or a deferment.
Can I Challenge my Job's Vaccine Requirement?
You can potentially either argue that you fall under one of the exemptions under federal law and require reasonable accommodation or you can also explore the possibility that the vaccine requirement is not being equally applied to all employees physically in the workplace. Generally employment in the United States is “at will” employment, which means that an employer can impose certain rules and restrictions to enforce workplace safety.
Keep in mind that there is a difference between a workplace recommendation and a requirement. Just because your workplace states that it “recommends” you get the vaccine does not mean you are required to do so.
Can my child’s school require that my child receive the COVID-19 vaccine?
The current CDC recommendation is that everyone age 12 or over get vaccinated. Schools typically already require that a child be vaccinated against certain illnesses in order to attend the school. Unless your child is under the age of 12 or falls into a religious or medical exemption, you might eventually be required to have your child get the COVID-19 vaccine.
Public Schools:
As of the writing of this article, it appears the trend is that public school districts are going to require masks and social distancing for the immediate future. The school district can mandate that its employees get the COVID-19 vaccine.
Private Schools:
The regulations for private school vary from state to state as to what vaccinations they are not exempt from requiring their students to have. Your school administrator should be able to let you know what the private school is responsible by law to require as far as vaccinations.
Can my college require me to get the COVID-19 vaccine?
The majority of colleges already have mandatory vaccine requirements for other illnesses. All colleges are required to accommodate students who cannot get the vaccine for medical reasons. 15 states have already signed into law legislation that states a college cannot ask a student for proof of COVID-19 vaccination. Even if you have a medical exemption and do not get the vaccine, the school can still elect to keep you off campus and have you attend class remotely.
Some states are working on legislation that will prevent employers and some schools from requiring vaccination. You can find a list of the states with proposed legislation at the National Academy for State Health Policy website.
Once the COVID-19 vaccine is FDA approved that will make it easier for employers and schools to require vaccination.
This is a rapidly evolving area of law and there could be substantial change over the next few months with school going back into session and winter forcing people inside more. As states individually decide what they will and will not do in regard to COVID-19 vaccination it is important to stay up to date on the latest developments and your individual rights so that you can make informed decisions.
If you have further questions about vaccine mandates or what your options are, please feel free to give us a call at (630)-324-6666, we are here to help. You can also fill out our confidential contact form and we will get back to you shortly.
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