The employer would have to engage in an interactive process to determine whether there was a reasonable accommodation that could be provided to the employee that would not inflict an undue hardship—including significant difficulty or expense—on the employer. In Mainella v. Golub Corporation, a pharmacist alleged discrimination under the ADA where her autoimmune disease made it unsafe for her to risk a needle stick while providing vaccinations and her request to not immunize customers was denied. The court held that "this suggested 'accommodation'—that she not be required to perform vaccinations—would amount to the elimination of an essential job function and, thus, [was] not a 'reasonable' accommodation." (No. 115CV1082FJSDJS, 2018 WL 1587049, at *6 (N.D.N.Y. March 28, 2018).)

Employers may be faced with questions in the gray zone though:
Should pregnant or breastfeeding employees be required to receive the vaccine?
What about employees with severe anxiety relating to vaccines?
What type of doctor's note is sufficient to exempt an employee from vaccination? (See Head v. Adams Farm Living, 242 N.C. App. 546, 588 (2015), where a nonspecific vaccine exemption note from a chiropractor was not sufficient to meet the employer's medical exemption policy.)

As with religious accommodation, employers will have to address each situation on a case-by-case basis, weighing the need for the employee to get the vaccine against the alternatives available to the employer. For example, an employee who claims a medical exemption to the Covid-19 vaccine due to a previous allergic reaction to an ingredient in the Pfizer vaccine could perhaps be required to get a different Covid-19 vaccine that does not contain the problem ingredient, when that vaccine becomes available. (See Norman v. NYU Langone Health System, 2020 WL 5819504 (S.D.N.Y. 2020), which found no discrimination where the plaintiff alleged she had an allergy to the flu vaccine based on two prior reactions but was required to receive a flu vaccine developed without egg proteins.)

Instant Insights /

Employment Issues Related to the Covid-19 Vaccines

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