Am I Entitled To A Disability Exemption From My Employer’s Requirement That All Of Its Employees In New Jersey Be Vaccinated Against COVID-19?
If you are an employee with a disability in New Jersey, 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. 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 an accommodation, you need not mention the Americans with Disabilities Act or the New Jersey Law Against Discrimination 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.
The ability or duty of employers in New Jersey to require all employees physically entering the workplace to be fully vaccinated against COVID-19 is governed by two different bodies of law: federal laws (that is, laws applying throughout the United States) and New Jersey laws. Let’s examine, in turn, each of these sources of authority.
Federal Law
Under the Americans with Disabilities Act (“the ADA”), 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 ADA, 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 an accommodation, you need not mention the ADA 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 ADA requires that employers offer an available accommodation if one exists that does not pose an undue hardship, meaning a 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 a vaccination or whose vaccination status may be unknown, can impact the ADA undue hardship consideration.
The ADA does not prevent your employer from inquiring about or requesting documentation or other confirmation that you, the employee, obtained a COVID-19 vaccination.
New Jersey Law
Employers generally may request medical documentation to confirm a disability when an employee requests a reasonable accommodation.
If you cannot receive a COVID-19 vaccine because of a disability, and the risk of COVID-19 transmission can be mitigated by your employer granting you a reasonable accommodation, your employer must do so unless there would be an undue burden on its operations.
A reasonable accommodation may include allowing you to continue to work remotely, or otherwise to work in a manner that would reduce or eliminate the risk of harm to other employees or to the public.
A reasonable accommodation may also include providing you with personal protective equipment that sufficiently mitigates your risk of COVID-19 transmission and exposure.
Your employer should engage in a flexible, interactive process with you to determine if an appropriate accommodation exists. Your employer must conduct an individualized assessment based on your specific job duties and limitations in assessing whether to provide a particular accommodation.
Under the New Jersey Law Against Discrimination (“the NJLAD”), if there is no reasonable accommodation that your employer can provide that would mitigate the risk of COVID-19 transmission to its employees and customers, then your employer can enforce its policy of excluding unvaccinated employees from the physical workplace, even if you are unvaccinated because of a disability. However, that does not mean that your employer can automatically terminate you if you cannot get vaccinated, because the employer may be precluded by other laws, regulations, or policies.
If you are an executive or a professional in the New Jersey metro area and you believe that you have been wrongfully terminated, that you’ve been denied 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 the New Jersey Employment Attorney David S. Rich at (201) 740-2828 today.
