Am I Entitled To A Disability Exemption From My Employer’s Requirement That All Of Its Employees In Manhattan, NY Be Vaccinated Against COVID-19?

If you are an employee with a disability in Manhattan, you may or may not be entitled to a disability exemption from your employer’s requirement that all employees physically entering the workplace be fully vaccinated against COVID-19.

The ability or duty of employers in Manhattan to require all employees physically entering the workplace to be fully vaccinated against COVID-19, as well as your entitlement, if any, to a disability exemption from your employer’s requirement, are governed by three different bodies of law: federal laws (that is, laws applying throughout the United States), New York State laws, and New York City laws. This article examines, in turn, each of these sources of authority.

Federal Law

Under the Americans with Disabilities Act (“the A.D.A.”), an employer may require all employees physically entering the workplace to be vaccinated against COVID-19, even though the employer knows that some employees may not get the vaccine because of a disability, provided that certain requirements are met.

Under the A.D.A., an employer may require an individual with a disability to meet a qualification standard applied to all employees, such as a safety-related standard requiring a COVID-19 vaccination, if the measure is job-related and is consistent with business necessity.

If a particular employee cannot meet such a safety-related qualification standard because of a disability, the employer may not require compliance for that employee unless it can show that the individual would pose a “direct threat” to the health or safety of the employee or others in the workplace. A “direct threat” is a “significant risk of substantial harm” that cannot be eliminated or reduced by reasonable accommodation.

This determination can be broken down into two steps: (i) determining if there is a direct threat and (ii) if there is, assessing whether a reasonable accommodation would reduce or eliminate the threat.

To determine if an employee who is not vaccinated because of a disability poses a “direct threat” in the workplace, an employer must first make an individualized assessment of the employee’s present ability to safely perform the essential functions of the job. The factors that make up this assessment are: (i) the duration of the risk; (ii) the nature and severity of the potential harm; (iii) the likelihood that the potential harm will duration of the risk; (ii) the nature and severity of the potential harm; (iii) the likelihood that the potential harm will occur; and (iv) the imminence of the potential harm.

If the assessment shows that an employee with a disability who is not vaccinated would pose a direct threat to self or others, the employer must consider whether providing a reasonable accommodation, absent undue hardship, would reduce or eliminate that threat. Potential reasonable accommodations could include requiring the employee to wear a mask, work a staggered shift, making changes in the work environment (such as improving ventilation systems or limiting contact with other employees and non-employees), permitting remote work if feasible, or reassigning the employee to a vacant position in a different workspace.

If you are an employee with a disability who does not get vaccinated for COVID-19 because of a disability, you must let the employer know that you need an exemption from the requirement or a change at work, known as a reasonable accommodation. To request accommodation, you need not mention the A.D.A. or use the phrase “reasonable accommodation.”

You and your employer will then engage in a flexible, interactive process to identify workplace accommodation options that do not impose an undue hardship (that is, significant difficulty or expense) on your employer.

Even if there is no reasonable accommodation that will allow you, the unvaccinated employee, to be physically present to perform your current job without posing a direct threat, your employer must consider whether remote work is an option for your particular job as an accommodation, and as a last resort, whether reassignment to another position is possible.

The A.D.A. requires that employers offer an available accommodation if one exists that does not pose an undue hardship, meaning significant difficulty or expense.

The proportion of employees in your workplace who already are partially or fully vaccinated against COVID-19 and the extent of employee contact with non-employees who may be ineligible for vaccination or whose vaccination status may be unknown can impact the A.D.A. undue hardship consideration.

The A.D.A. does not prevent your employer from inquiring about or requesting documentation or other confirmation that you, the employee, obtained a COVID-19 vaccination.

Laws In New York

In New York City (including Manhattan), starting August 17, 2021, people 12 years of age and older – including both employees working at these locations and customers — are required to show proof that they have received at least one dose of a COVID-19 vaccine authorized for emergency use by the U.S. Department of Health and Human Services Food and Drug Administration (the “F.D.A.”) or the United Nations’ World Health Organization (the “WHO”) for indoor dining, indoor fitness, and indoor entertainment.

These requirements are imposed by Emergency Executive Order 225, also known as the “Key to N.Y.C.,” which New York City Mayor Bill de Blasio issued on September 16, 2021, and which the City began enforcing on September 13, 2021.

The New York Commission on Human Rights (the “City Commission on Human Rights” or the “NYC CHR”) has issued separate guidance on the duties of businesses under the New York City Human Rights Law (the “City Human Rights Law” or the “NYCHRL”) and how those duties interact with the Key to N.Y.C. With exceptions not here relevant, the NYCHRL governs all employers that have four or more employees in the New York.

The NYCCHR’s guidance states that when implementing the Key to N.Y.C., businesses must provide reasonable accommodation to employees who require them because of a disability, pregnancy, religious belief, or their status as victims of domestic violence, stalking, or sex offenses.

If, as an employee, you request an exception to New York City’s (including the borough of Manhattan’s) vaccine requirement or additional time to provide your proof of vaccination for one of the reasons listed above, your employer must engage with you in a cooperative dialogue or a good-faith discussion to see if a reasonable accommodation of you is possible.

Reasonable accommodations can take many forms. For example, you, the employee, could work remotely, perform your job duties outside or isolated from other employees or customers, or take a leave of absence.

Your employer does not have to provide you with a reasonable accommodation if it would cause a direct threat to other customers or employees of the business or impose an undue hardship on the business.

If you seek reasonable accommodation from your employer because of a disability or pregnancy, your employer can request a note from your medical provider. The note from your medical provider does not have to specify your particular medical condition or pregnancy status, but it should confirm that you are presently unable to show proof of vaccination.

Under the NYCHRL, employees are only entitled to reasonable accommodations for needs related to their own disabilities, pregnancies, religious beliefs, or status as a victim of domestic violence, stalking, or sex offenses. Your employer does not have to provide reasonable accommodation to you if you fall outside of these categories and can fire you if you are unable to show proof of vaccinations.

If you are an executive or a professional in Manhattan or the surrounding New York City metro area and you believe that you have been wrongfully terminated, that you’ve been denied a salary, bonuses, commissions, or other wages that are owed to you, or that your employer has failed or refused to reasonably accommodate your disability, call borough of Manhattan Employment Attorney David S. Rich at (347) 941-0760 today.

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