In late November and early December, reports began surfacing that approval of a COVID-19 vaccine might be near and that a ‘massive’ network designed to distribute the vaccine was ready to get millions of doses to Americans. While many may be eagerly anticipating a COVID-19 vaccine, others may be viewing it with a more skeptical eye. Some opposed to getting vaccinated may soon find themselves potentially forced to choose between getting an unwanted vaccine or losing their jobs. For certain New Jerseyans, an employer forcing a mandatory vaccine upon them may represent a violation of the Law Against Discrimination and, with the help of a skilled New Jersey employment discrimination attorney, provide the foundation of a winning civil claim in court.
In several circumstances, an employer that establishes a policy requiring all employees to receive a vaccine may be acting legally under the Law Against Discrimination. Recently, the state legislature passed a law that required all home health care workers, nursing home staff and hospital workers to receive the flu vaccine. By analogy and logical extension, any policy by one of these types of employers to require the COVID-19 vaccine would generally be permissible.
Note those words “several” and “generally” in that preceding paragraph. Whether you work at a hospital, a bank or at a construction site, there are certain situations in which your employer is limited in what it can do. Your employer cannot, for example, make you get a vaccine if you can show that receiving that vaccine would be seriously medically harmful to you. If you have a valid medical exemption and your employer refuses to honor it, that refusal could represent the basis of a winning disability discrimination case in New Jersey.
Vaccines and religious obligations
Another issue that could potentially implicate a workplace discrimination claim is an employee’s religious opposition to receiving a vaccine. For example, many Muslims believe that consuming pork is forbidden, so taking any vaccine made (in whole or in part) from pig-derived products would be a religious violation. Many Buddhists oppose receiving any vaccination that is made, in whole or in part, from products derived from any animal. Christian Scientists also oppose vaccination.
Whether or not an employer must accommodate employees with religious objections to mandatory vaccinations is something that is not yet clear in New Jersey law. The mandatory flu vaccination law is less than one year old, so the New Jersey courts have not addressed this new statute and religious discrimination implications.
A flight attendant sued her employer for firing her after she refused to take a yellow fever vaccine. (The flight attendant was Buddhist, and the yellow fever vaccine had animal-derived products in it that were forbidden by her religion.) While the flight attendant recently lost an argument in the state Supreme Court, that didn’t mean she lost her case. The court did not bar her from arguing that the employer had committed impermissible religious discrimination; it merely required her to make that showing in an arbitration hearing as opposed to a civil court trial.
For certain people, receiving or declining a vaccination is a deeply personal decision. In some situations, it may be more than just an intellectual quandary… it may be physically dangerous or a profound religious transgression. Sometimes, that may mean that a worker is entitled to an accommodation. Whether yours is a COVID-19 vaccine, a flu vaccine, a yellow fever vaccine or something else, make sure you know your legal rights and options. Talk to the knowledgeable religious discrimination attorneys at Phillips & Associates to get the advice and counsel you need. Contact us online or at (609) 436-9087 today to set up a free and confidential consultation to discuss how we can use the power of this office to work for you.