Question: My employer is requiring that their employees to be vaccinated against COVID-19. Can my employer legally require me to receive the vaccine?
Answer: The short answer to the question of whether employers can require employees to be vaccinated against COVID-19 is, “‘Yes,’ but with some exceptions.”
Illinois is an “at-will employment” state. At-will employment essentially means that an employee can leave a job at any time, for any reason. Similarly, employers can terminate their employees at any time, for any reason—as long as the reason does not violate local, state, or federal law.
The at-will employment doctrine allows employers to establish policies and procedures for their employees as a requirement of their employment. Such policies are generally considered lawful so long as they are applied to all employees equally and are not enforced in a discriminatory manner.
The U.S. Equal Employment Opportunity Commission has issued guidance specifically addressing COVID-19 vaccine requirements in the workplace. The EEOC guidance states that “federal…laws do not prevent an employer from requiring all employees physically entering the workplace to be vaccinated for COVID-19” as long as that employer complies with reasonable accommodation provisions of Title VII and ADA requirements.
The EEOC’s guidance means that employers are allowed to require that their employees receive the COVID-19 vaccine—UNLESS the vaccination requirement interferes with the employee’s rights under the ADA or with a sincerely held religious belief.
Employees could be exempt from vaccination requirements if they have a disability as defined by the ADA (Americans with Disabilities Act.)
However, an employer could still require the vaccination if the employee posed a “direct threat”—e.g. a significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by a reasonable accommodation.
Whether an unvaccinated employee would be a “direct threat” is determined by an independent four factor test: (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 the employer determines an unvaccinated employee constitutes a direct threat, the employer must determine whether a reasonable accommodation can be provided to the employee.
A reasonable accommodation could involve wearing a face mask at work, social distancing, periodic testing for COVID-19, working a modified shift, remote work, accept a reassignment, etc.
If the employer is unable to accommodate the employee’s request for reasonable accommodation, the employer is required to show how granting that accommodation request would pose an undue hardship on the operation of the employer’s organization.
An employee may also be exempt from a mandatory vaccination policy under Title VII if the vaccination would violate the employees “sincerely held religious belief.” The definition of “religious belief” is very broad, and it is presumed that the religious belief is “sincerely held” by the employee.
If an employee requests an exemption for a sincerely held-religious belief, the employer must determine whether the employee would constitute a direct threat and if not, the employer must engage in an interactive process with the employee, and determine if the threat can be eliminated or reduced by a reasonable accommodation.
Public v. Private Employers
If an employee works for a public employer, such as a state university, then the employer has a burden to show the vaccination policy is rationally related to a legitimate state interest. Though there can be an argument that an employee has a liberty interest in their employment, the "right to work" is not considered a fundamental right under the Constitution.
States have the power to pass laws providing for public health and safety within Constitutional limits--therefore, states can individually adopt vaccine requirements. For example, all fifty states and the District of Columbia have laws requiring that students are vaccinated against certain illnesses before attending school.
The “at-will” employment doctrine in Illinois gives employers wide latitude to impose vaccine requirements on their employees, as long as those requirements provide exceptions for individuals who are disabled or hold a sincere religious belief.
There is no fundamental right to employment in the United States--especially employment with a private corporation. Unless “at-will” employment as a legal concept is openly challenged, employers will be given the benefit of the doubt when it comes to enforcing vaccination policies.
As with most legal issues, each individual’s employment situation has its own fact-specific scenario that calls for a consultation with an attorney.