The COVID-19 vaccine has become a polarizing issue in the country: people are either scrambling to get the vaccine or scrambling to avoid the vaccine. As fear of the vaccine and COVID-19 increase, people find themselves facing many uncertainties in this time of the Corona virus. Will concerts take place soon but require patrons to provide proof of COVID-19 vaccinations? Will proof of the vaccine be required to travel via plane? Trains? Cruises? Will universities require students to take the vaccine to attend school? But most importantly: can my employer require me to take the vaccine to keep my job? The initial response might be a resounding “NO,” but like every answer to a legal question the correct answer is “It depends.” Private businesses can do as they please. You might find yourself asking, “But what about people with disabilities and religious exemptions?” Unfortunately, these once valid exemptions are no longer valid.

As of today, the Covid-19 vaccines in the United States are authorized for Emergency Use Authorization (EUA). This is not the same as a fully FDA approved vaccine. The EUA allows the administration of non-FDA approved vaccines to the public during a public health emergency. Research towards full FDA approval will continue during the administration of the vaccine under the EUA. Most importantly, a vaccine that is not fully FDA approved and has only received an EUA cannot be made mandatory. The recipient of such vaccine must be made aware of the known potential benefits and risks and must be made aware that not all benefits and risks are known. The recipient of the vaccine must be informed that they have the “option to accept or refuse the vaccine” and must be informed of the available vaccination alternatives.

On December 16, 2020, the U.S. Equal Employment Opportunity Commission (EEOC) issued and updated their COVID-19 frequently asked questions page to include guidance on employer-mandated vaccinations. The EEOC update provides that an employer can require that employees “not pose a direct threat to the health or safety of individuals in the workplace” and that an employer can mandate vaccines to maintain a safe workplace. If a safety mandate screens out people with disabilities, the employer must show that an unvaccinated employee poses a direct and substantial threat of harm to the health or safety of other employees that cannot be avoided by reasonable accommodations. In assessing the direct threat, the employer must consider the duration of the risk, the nature and severity of the potential harm, the likelihood of this harm occurring, and the imminence of the potential harm. If the employer determines that an individual who cannot be vaccinated due to a disability poses a direct threat to other employees, then the employer must try to provide the unvaccinated employee with reasonable accommodations. Reasonable accommodations include working remotely, working away from other people, or being able to work with masks, face shields and other protective equipment. If reasonable accommodations are unavailable or prove unsuccessful, then the employer can physically exclude the employee who cannot be vaccinated. The ideal advice from the EEOC would be to have the employee work remotely, but if remote work is not viable, then the employee who cannot be vaccinated can be fired.

Similarly, if an employee presents a religious belief exemption from the vaccine, reasonable accommodations must be provided and if they cannot be, then the employee claiming the religious exemption can be excluded from the workplace or ultimately fired.

It seems that everyone has a stance as to whether they would be vaccinated or not. But many people may change their stance when their livelihood depends on it.