In the current climate we are living in, vaccines have become a topic that has moved to the forefront of everyone’s minds, including employers as of late. We have received some calls from employers and employees asking the question about whether COVID vaccines can legally be required as a condition of continued employment. I thought I would address at least a partial answer to that question here in this article because each fact pattern is unique; however, we would prefer that you call in to our law firm to get a more detailed answer.

In general, employers are free to encourage an employee to get a COVID vaccine however they cannot require the COVID vaccine as a requisite for continued employment.

Please be aware that the COVID vaccine has not been approved by the FDA. The FDA has simply granted emergency use authorization pursuant to section 564 of the FD&C Act which is not the same as approval under FDA.  Please further note that under the FD & C Act (Federal Food, Drug and Cosmetic Act) an employer can’t require the vaccine because the Act gives the requirement that an employee be given the opportunity to opt out when the drug is under emergency use authorization. see 21 U.S. Code § 360bbb–3 – Authorization for medical products for use in emergencies (e)(1)(ii), part of conditions of authorization https://www.law.cornell.edu/uscode/text/21/360bbb-3

However, a few years down the road the FDA will more than likely approve the COVID vaccine and when that happens and employer should be aware of two scenarios that could come up if they make the COVID vaccine a requirement.

First, an employer should be aware that an employee may state that they are unable to receive the vaccine because of a religious practice or personal belief. If an employee states that they cannot receive a vaccine due to a sincerely held religious practice or personal belief, then the employer will need to consider Title VII of the Civil Rights Act. If doing business in New Mexico, then the employer will also need to consider the NM Human Rights Act, NMSA Statute 28-1-7. Generally speaking, under Title VII of the Civil Rights Act, “the employer must provide a reasonable accommodation for the religious belief, practice or observance unless it would pose an undue hardship.” For further EEOC guidance, please reference the article: What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws.

Second, an employer should also be aware that an employee may state that they are unable to receive the vaccine because of disability. Under the ADA, an employer can have a qualification standard that would require a vaccine by including “a requirement that an individual shall not pose a direct threat to the health or safety of individuals in the workplace.” But, if a vaccine requirement screens or tends to screen out an employee with a disability, the employer has to show that an unvaccinated employee will be a direct threat to other employees or themselves and that it cannot be reduced by a reasonable accommodation (29 CFR § 1630.2(r).d). The NM Human Rights Act states that an employer, “must provide a reasonable accommodation that does not cause an undue hardship to any employee that has a physical or mental handicap or serious medical condition. If the accommodation is unreasonable or causes an undue hardship, the employer does not have to provide the accommodation under NM Human Rights Act. The New Mexico Human Rights Commission regulations, however, define reasonable accommodation as “such modifications or adaptations of the work environment or job responsibilities of a disabled person as are necessary to enable him or her to perform the essential functions of the job in question and which do not impose an undue hardship on the employer.” (9 NMAC 1.1.7).

As mentioned above, each fact pattern for an employee or an employer is distinct regarding COVID vaccine questions, so we encourage you to call us for advice.

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