Recent guidance from the Equal Employment Opportunity Commission (EEOC) provides that employers can mandate that employees receive the COVID-19 vaccine. However, employers with more than 15 employees must allow employees who cannot receive the COVID-19 vaccine due to disability or for religious reasons to request an accommodation to the vaccine requirement under the Americans with Disabilities Act (ADA) or Title VII of the Civil Rights Act. Employers with fewer than 15 employees are subject to similar requirements under the Illinois Human Rights Act (IHRA).
Importantly, under these laws, employers are not required to provide any accommodation that poses an undue burden on the employer or would pose a direct threat to others. If an employee refuses a workplace vaccine requirement for reasons related to a disability, the accommodation must permit the employee to perform the essential functions of the employee’s job. Analysis of what, if any, accommodation may be reasonable requires a case-by-case analysis related to the specific job and work environment. If an accommodation for disability or religious reasons poses a direct threat to others or imposes an undue burden on the employer, then the employee has little recourse under federal law against the employer’s vaccine mandate. If no reasonable accommodation is available, the employee may be terminated for refusing vaccination under the ADA, Title VII and the IHRA.
Other unique circumstances may affect the analysis of employment issues, including whether the employee is a member of a union subject to a collective bargaining agreement or has an employment contract. However, most employment relationships are “at-will,” meaning that an employee may be terminated at any time for any reason not prohibited by law.
These are complicated and serious legal issues and employees should consult with an attorney experienced in employment law.
What about my rights to refuse my employer’s COVID-19 vaccine requirement under the Illinois Health Care Right of Conscience Act?
The Health Care Right of Conscience Act (HCRCA) prohibits both public and private employers from discriminating or imposing any burdens on the terms and conditions of employment for any employee who refuses to receive any form of health care service contrary to the employee’s conscience. While the HCRCA has existed for a couple of decades, it has only recently become popular in the wake of various COVID-19 vaccination mandates for certain public employees and many private employers. Unfortunately, the HCRCA simply has not yet been tested in the courts pertaining to vaccine requirements and an ongoing pandemic. Therefore, it’s difficult to predict how trial courts, the appellate courts, and, ultimately, the Illinois Supreme Court, will rule on the matter.
One of the key aspects of this law is that it permits an employee to refuse vaccination on the basis of conscience. The HCRCA defines “conscience” as “[A] sincerely held set of moral convictions arising from belief in and relation to God, or which, though not so derived, arises from a place in a life of its possessor parallel to that filled by God among adherents to religious faiths.” 745 ILCS 70/3(e). This language is similar to language used by federal courts when assessing claims of religious discrimination under Title VII of the Civil Rights Act, the federal law (discussed above) that provides employees some religious protection in the workplace. The courts are unlikely to challenge whether an employee’s religious objections are, in fact, religious. Rather, the courts will likely scrutinize whether the employee’s religious objections are sincere. Furthermore, the court will likely assess whether the sincere religious objections are the actual reason for the employee’s objection to the vaccine requirement.
Whether the HCRCA provides any recourse to your employer’s vaccine requirement is a fact-intensive question which must be individually assessed. These are complicated and serious legal issues and employees should consult with an attorney experienced in employment law.