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What You Need to Know as an Employee
With each passing month of summer this year, the new, hyper-contagious COVID-19 Delta variant has continued rapidly spreading across the nation and New York State, and it has caused an increasing number of workplaces in New York City to begin requiring employees to provide proof of vaccination to continue coming to work in person. Employees of many private businesses in New York City have had to abide by vaccine mandates since 1 as early as May of 2021 when the Equal Employment Opportunity Commission (EEOC) first released guidance giving employers the green light for such mandates, but very recently, in the last week of July of 2021, New 2 York City’s Mayor Bill DiBlasio officially declared that the City will now be enforcing vaccine mandates on public sector employees as well, including all city workers.
Ultimately, per DiBlasio, beginning September 13, 2021, the entire city of New York will require proof of vaccination or weekly COVID-19 tests for all city workers for these workers to continue employment with the City.
1Wilson Wong, N.Y.C. becomes first major U.S. city to mandate vaccination proof for indoor dining, gyms, NBC News (Aug. 3, 2021) https://www.nbcnews.com/news/us-news/nyc-becomes-first-major-u-s-city-mandate-vaccination-proof-n1275807
2What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws, (hereinafter, “EEOC
Guidance”) U.S. E.E.O.C. (last updated May 28, 2021). https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws
Because these new vaccine requirements have left employees in New York with so many questions, we have put together the following information about the legality of the mandates, your options, and the consequences of each option to offer you some guidance during this uncertain time.
Are Vaccine Mandates Legal?
Guidance from the EEOC says employers are not prohibited from requiring employees who are physically 4 at the workplace to get vaccinated, as long as the requirements comply with other workplace laws. For example, the requirements must provide reasonable accommodations for those with disabilities and religious exemptions. The U.S. Justice Department has since further solidified the EEOC’s guidance in a legal opinion 5 where the Department held that businesses may lawfully require employees to get vaccinated against COVID-19.
So… What Are My Options?
Our first recommendation is to talk to your doctor about if the COVID-19 vaccine is right for you. That is the best way for you to get accurate, personal guidance on whether or not you should receive this vaccination.
If your doctor gives you the okay to get the vaccine, New York has an online Vaccine Finder that you can use to find where to get the vaccine nearest to the zip code where you live (linked below). However, if you are 6 informed by your doctor that you should not receive the vaccine for any reason, or if you are religiously exempt from receiving it, you should obtain documentation showing your lawful exemption to the mandate, and discuss this with your employer. The vaccine mandates must still abide by other employment laws, meaning you cannot be discriminated against if you have a valid exemption. Be warned though: if your doctor approves you getting the vaccine, and you do not have any other valid exemption to excuse you getting the vaccine, your employer CAN lawfully fire you for disobeying the vaccine mandate.
Can I Collect Unemployment if Fired for Refusing the Vaccine?
Although this is a new area of law that has not yet been substantially litigated and clarified, it appears thus far, according to the EEOC, that unemployment will not be available to employees who are fired for refusing the vaccine without a valid exemption. Generally, under employment law, at-will employees may be fired for violating a known workplace policy, as long as they were treated the same as their peers. And when you are fired 6 NYC Vaccine Finder, https://vaccinefinder.nyc.gov/ 5 Whether Section 564 of the Food, Drug, and Cosmetic Act Prohibits Entities from Requiring the Use of a Vaccine Subject to an Emergency Use Authorization (Slip Opinion), U.S. Dep’t. Of Just. (July 6, 2021). https://www.justice.gov/olc/file/1415446/download 4 See EEOC Guidance, supra note 2.
3 Fact check: Workers fired for refusing a vaccine are unlikely to qualify for unemployment, USA Today (Aug. 9, 2021) https://www.usatoday.com/story/news/factcheck/2021/08/09/fact-check-workers-fired-over-vaccination-can-denied unemployment/5518818001/.
See EEOC Guidance, supra note 2.
Whether Section 564 of the Food, Drug, and Cosmetic Act Prohibits Entities from Requiring the Use of a Vaccine Subject to an
Emergency Use Authorization (Slip Opinion), U.S. Dep’t. Of Just. (July 6, 2021). https://www.justice.gov/olc/file/1415446/download
NYC Vaccine Finder, https://vaccinefinder.nyc.gov/
for violating a workplace policy? You are unlikely to receive unemployment benefits.
If you refused to be vaccinated because of a valid exemption and you were still fired, however, or if you were the only person fired for refusing the vaccine, though other employees refused it as well, you may have a case against your employer for wrongful termination!
Contact Us Shalom Law for Employment Law Support
To determine if your rights have been violated and to assess your potential case, you should consult with an experienced employment discrimination attorney as soon as possible.
The employment discrimination attorneys at Shalom Law have a keen eye for finding the most important details of your case, and we will fight hard for YOU!
For a consultation, call Shalom Law today: (718) 917-9474.
This memorandum relates to general information only and does not constitute legal advice. Facts and circumstances vary. We make no undertaking to advise recipients of any legal changes or developments.
