According to the Center for Disease Control and Prevention (CDC), COVID-19 vaccines are “safe and effective. They prevent severe illness, hospitalization, and death. Additionally, even among the uncommon cases of COVID-19 among the fully or partially vaccinated vaccines make people more likely to have a milder and shorter illness compared to those who are unvaccinated. CDC continues to recommend everyone 12 and older get vaccinated against COVID-19.” To date, according to the CDC, as of August 16, 2021, over 357 million doses of COVID-19 vaccines have been given in the United States. Of that number, 175 million people were fully vaccinated, while 182 million received at least one shot.
Generally, the safety of a company’s employees and customers outweigh an individual employee’s right to refuse to take the COVID-19 vaccination. However, one main exception is an employee’s right to reasonable accommodation of his/her disability. The New Jersey Law Against Discrimination (LAD) as well as the federal Americans with Disability Act (ADA) prohibit an employer from discriminating or retaliating against an employee as a result of a disability. The employer must, instead, reasonably accommodate the employee’s disability.
In Ruggiero v. Mount Nittany Medical Center, 736 Fed. Appx. 35 (3d Cir. 2018), the plaintiff worked as a registered nurse. She suffered from severe anxiety. The hospital sent all clinical employees a notice requiring them to receive the TDAP vaccine by a certain date. The plaintiff produced a doctor’s note stating that she is “medically exempt from receiving the [TDAP] immunization due to severe anxiety with some side effects she read with this injection, especially with her history of having many food allergies, environmental allergy and eosinophilic esophagitis. Patient being terrified, I feel the risk of this [TDAP] injection outweighs the benefits. [Plaintiff] understands the risks of not getting this immunization.” The hospital rejected the doctor’s reasons for plaintiff’s refusal to receive the vaccination. As an accommodation, the plaintiff then suggested she wear a mask, which the hospital permitted when other nurses refused to receive the flu vaccine. However, instead of that accommodation, the hospital fired the plaintiff.
The plaintiff filed suit alleging that the hospital violated the ADA by failing to reasonably accommodate her disability, discriminating against her because of her disability, and retaliating against her for requesting an accommodation of her disability. The hospital filed a motion to dismiss the complaint. The District Court granted the motion. However, the Third Circuit Court of Appeals reversed. The Third Circuit concluded that the plaintiff alleged sufficient facts to show that the hospital knew of her disability and request for accommodation – either an exemption from the vaccine requirement or permission to wear a mask- but, nevertheless, fired her.
In addition to disability, there may be other legitimate reasons an employee may refuse to receive a vaccination, including religious, health, pregnancy, etc. While getting the COVID-19 vaccination is encouraged, if there exists a legitimate reason for refusal, the employee must advise the employer of that reason, and in the event of any disciplinary action, including termination, may seek remedy from the courts.
At Chatarpaul Law, our practice is focused on employment discrimination, civil rights and constitutional rights violations. You may contact us at 201-222-0123 or [email protected].