Get The Shot Or Get Fired?

Get The Shot Or Get Fired?

President Biden issued an Executive Order compelling companies with more than 100 employees to require all employees to be vaccinated or provide proof of weekly negative COVID-19 tests. This also applies to smaller companies that are federal contractors. 

While this order creates many legal questions for companies, the most pressing decision employees must make is whether to get the shot or be fired. 

Though there are exceptions to a vaccine mandate, most employees likely do not fit within either of the exceptions. The two main exceptions deal with ADA disability accommodations and accommodations for sincerely held religious beliefs. 

 ADA Issues

 If a disability prevents you from getting the vaccine, you may request to be excused from getting the vaccine as a “reasonable accommodation” under the ADA. 

 However, be prepared to prove that you do have a medical condition that will prevent you from getting it.  Expect your employer to verify that you really do have a disability that will prevent you from getting the vaccine. 

 A company is not going to just take your word for it. Nor should it.  Because going unvaccinated can put others in danger, a company is well within its rights to request medical information to verify that you do have a disability when it considers your ADA reasonable accommodation request. That proof will need to be more than just saying, “my doctor said I should not get it.”

 Sincerely-Held Religious Beliefs

 Some employees request an exemption from the mandatory vaccine requirement because a sincerely held religious belief prevents the employee from receiving the vaccine. 

 Generally, this is a small part of the workforce population.  However, in recent weeks, it has expanded rapidly, with many websites starting to pop up offering “advice” to employees on how to seek this accommodation or even selling pastoral “notes” to employees.

 If you ask for a religious accommodation, know that you must show that you have a sincerely held religious belief. Be prepared to identify the specific religion.  Be prepared to explain why this sincerely held religious belief requires accommodation.

Companies are already wise to employees who “suddenly” claim to hold sincerely held religious beliefs that prevent them from getting the vaccine.

One popular request for an accommodation addresses that the vaccine was developed (in part) using fetal stem cells. Many employees claim that fact prevents them from getting vaccinated.

One employer is pushing back. It requires its employees to verify and attest that they do not take any medication or vaccine developed with the use of fetal stem cells.  This includes very popular and commonly used medicines such as Tylenol, Pepto-Bismal, Aspirin, Ibuprofen, Ex-Lax, Benadryl, and Claritin. That company wants to know how committed the employees are to the sincerely held religious belief.  If the employee takes any of those medications, an argument can be made that the employee is not necessarily all that committed to the belief.

If you intend to ask your company for religious accommodation, be prepared for questions about your request.  

If it makes you mad to provide evidence of a disability or a sincerely held religious belief, think about why your employer is asking for it.  Remember, companies owe a duty to their other employees and customers to provide a safe environment. 

If you don’t want to do support your accommodation request, you may walk with your feet. You do not have to continue to work for a company that requires you to be vaccinated.  You can quit. 

If you don’t want to quit, please remember that your company is trying to balance its duties owed to other employees and customers.  It is going to take all of us working together to get through this pandemic.  Do your part to keep everyone safe.


The COVID-19 Vaccines

The COVID-19 Vaccines

With the first vaccines approved to fight the COVID-19 virus, many ask if an employer can require a COVID-19 vaccination as a condition of employment.

The answer is complicated.   

The first place to look for an answer to this question is the EEOC’s COVID-19 Technical Assistance Questions and Answers.  This guidance is available at  The EEOC regularly updates this guidance as we obtain new information about COVID-19 and the vaccines.

As a general rule, an employer can require employees to get vaccinated. However, there can be exceptions to this general rule because of ADA disability concerns and religious discrimination concerns. 

ADA Issues

An employee may have a disability that prevents the employee from getting the vaccine. There, two things could happen. First, an employer may argue that the employee could be terminated because the employee is not a “qualified employee” under the ADA.  Employees who directly threaten the health or safety of individuals in the workplace are not “qualified employees” under the ADA.  However, the employer would have to actually show that the employee poses a direct threat to others.

Before concluding that an employee who is not vaccinated poses a direct threat to other employees, the employer must individually assess the risk to others.  This assessment considers factors such as: (1) the duration of the risk, (2) the nature and severity of the potential harm; (3) the likelihood that the potential harm will occur; and (4) the imminence of the potential harm.

If an employer determines there is a direct threat from an unvaccinated person that cannot be reduced to a reasonable level, the employer can exclude the person from entering the workplace.  However, the company cannot just automatically terminate the employee.  Instead, the company must explore where there are other reasonable accommodations (such as working remotely) that would allow the employee to perform his or her job duties.

The second scenario—and the one likely to be far more common—is that an employee who cannot get the vaccination asks for an exemption from that requirement as a reasonable accommodation under the ADA. Again, an employer must assess each requested accommodation on an individualized basis.  If the employee can easily work remotely, that would be one easy accommodation.  In other cases, it might be trickier.  However, the employer could consider other steps (such as private office spaces, plexiglass dividers, etc.) that could protect the employees.

Sincerely held religious beliefs

The second area where claims may arise from a mandatory vaccine requirement is with employees whose sincerely held religious beliefs prevent the employee from receiving the vaccine. 

If an employee tells the employer he or she has a sincerely held religious belief preventing the employee from obtaining the vaccine, the employer must reasonably accommodate that religious belief unless it poses an “undue hardship.” An “undue hardship” is something having more than a de minimis cost or burden on the employer. 

Just like with the ADA, if an employee asks for an accommodation due to sincerely held religious beliefs, the company and the employee should together explore what reasonable accommodations can be made to accommodate that belief. 

Though a company may exclude the employee from the workplace if the employee cannot get vaccinated, it does not mean that the company can automatically terminate the employee.  Again, the company must explore other potential accommodations, such as remote work.

After such a hard year, companies and employees want things to return to normal.  The push to vaccinate employees soon is expected.  However, there may be legitimate reasons for some employees to request to be exempted from a vaccination requirement. 

This will be a tricky area to navigate in the coming months. If we can help, please contact us. 

Returning to Work in a Pandemic:  ADA Concerns

Returning to Work in a Pandemic: ADA Concerns

As offices reopen, many people have real concerns about COVID-19 and how it affects the workplace.  The EEOC’s Technical Assistance Questions and Answer on what you should know about COVID-19 and various EEO laws is a great resource for these questions. The EEOC updates this guidance regularly, but the most current version is at:

One set of concerns deals with people afraid to return to work.  A person might have health issues making that person vulnerable to COVID-19.  Or the person may live with another person at risk due to age or underlying health issues.  The employee fears going to work and possibly bringing home germs that expose the family member to illness.

Many employees are asking what happens if they refuse to return to work because of this fear. Usually, the employee won’t have much protection if the employee refuses to return to work due to a generalized fear.  However, sometimes, the ADA may provide relief.

If an employee’s disability puts the employee at a higher risk from COVID-19, the employee may ask for a reasonable accommodation that would allow the employee to perform the job duties.  The catch is what is a “reasonable accommodation” and whether the requested accommodation creates an undue hardship for the employer.

For example, if the employee has a job that can be performed remotely, the employee could request permission to continue to work remotely even after other employees have returned to the office.  The employee must have an underlying disability, though, not just a generalized fear of exposure to COVID-19 before the employee would be eligible for a reasonable accommodation.  So, just because an employee is over age 65 or is pregnant, that alone would not be entitled to an ADA accommodation without some other disability. Also, an employee who fears exposing a family member at higher risk of severe illness from COVID-19 due to an underlying medical condition may not have accommodation under the ADA. 

That does not mean that an employee with these concerns should not ask for such an accommodation.  It just means that an employer is not required by the ADA to grant the accommodation.  Some employers might still be happy to work with the employee to address that concern. 

If the employee cannot get the accommodation of working remotely, the employee should explore other kinds of reasonable accommodations that might minimize the risk of exposure to COVID-19.  This can include getting permission to wear a mask or being allowed to work in a space appropriately distanced from coworkers. It might include asking for plexiglass shields to be installed between cube spaces. The website is a good resource for workplace accommodations.

An employee can also consider whether the employee may have Emergency Paid Sick Leave or Emergency FMLA leave under the Families First Coronavirus Response Act.  However, those provisions only apply to companies with fewer than 500 employees, so many employees are not eligible for those benefits.

The laws and regulations are changing frequently. If you have questions, we can help.