Post Authored By: Brian M. Bentrup
Life in the United States is slowly returning to that which many Americans were accustomed before words such as “coronavirus”, “COVID-19”, “slowing the curve”, and “social distancing” became part of everyday conversation. Cases and deaths are slowing, vaccination rates are climbing, venues are eliminating occupancy restrictions, restaurants and bars are fully reopening, and businesses are resuming full operations, which means workers are returning to in-person work.
In Illinois, Governor Pritzker has rescinded restrictions and reopened the state for business. Illinoisans, subject to the rules of private business, are no longer required to wear a mask provided they are vaccinated. In a country where “vaccination passports” are highly unlikely to ever become a prerequisite for, well, anything, employers must rely on individuals to accurately self-report their vaccination record. This means, absent other context or compelling reason, an employer or business must accept this self-reporting at face value.
What if an employee doesn’t want to get vaccinated or shouldn’t receive it for medical or religious reasons? What are an individual’s rights in such a situation? What are employers’ rights?
As a starting point, an employer has a duty to maintain a safe and healthy working environment. If the employer has reason to suspect an employee may have contracted COVID-19, the employer can require a doctor’s note or negative COVID test before the employee’s return. Nothing in state or federal law prohibits this requirement. Employers can also require temperature checks before allowing an employee to enter the premises. The Equal Employment Opportunity Commission (EEOC) has declared this proper. Further, state law allows employer face covering requirements as a way to promote a healthy and safe work environment.
Despite this duty, employers may not follow the published guidance from various governmental organizations, such as the Centers for Disease Control (CDC), Federal Drug Administration (FDA), state governments, or local municipalities. Employers are prohibited from retaliating against an employee for raising concerns about COVID-19, or their overall safety and health, either internally or to a government agency. Employers are further prohibited from retaliating against an employee when the employee discloses information that they have reasonable cause to believe is a violation of a state or federal law, rule, or regulation.
There is no state or federal law requiring that an employee receive the COVID-19 vaccine, but can the employer require their employees to get the COVID-19 vaccination? The decision to vaccinate is a personal choice, but it is recommended for anyone over 16. The FDA has approved several vaccines for children age 12 and over, and approval of a vaccine for children as young as 4 is expected no later than early 2022. How does this relate to an employer’s duty to promote a safe and healthy work environment? Quite frankly, an employer cannot require an employee to be vaccinated as a condition of employment.
An employee can refuse a vaccine on the basis of a religious objection or a disability, and may otherwise request “reasonable” accommodations. Under the Americans with Disabilities Act (ADA), a disability could be claimed if receiving the vaccine would inhibit activities of daily living or affect major bodily functions. What are reasonable accommodations under the ADA? This could include job restructuring, modified or part-time work schedule, reassignment, new equipment, or work-from-home arrangements. Reasonable accommodations under the ADA do not include accommodations that impose an undue hardship on the employer, e.g., extreme cost or burden. With respect to a religious objection, the belief must be sincerely held, and also must not impose an undue burden.
Ultimately, the decision to receive the vaccine or not is a personal choice, one which cannot be overridden by an employer’s duty to maintain a safe and healthy work environment. Employers may impose temperature checks, face coverings, or require proof of a negative COVID test. But, employers’ options are limited beyond this point. Employees have remedies available against employers who retaliate against employees who raise concerns or report employer actions. Fortunately, with COVID-19 trending positively in the United States, these concerns may be abated all together within the not-too-distant future.
About the Author:
Brian M. Bentrup is a graduate of Loyola University Chicago where he triple-majored in Economics, Political Science, and Psychology. In 2015, he obtained his law degree from The John Marshall Law School. In law school, Brian was selected to be an extern for the Honorable Laura C. Liu in the Mortgage Foreclosure and Mechanics Lien Division as well as the Illinois Tenant Union.
Brian joined Pluymert, MacDonald, Hargrove & Lee, Ltd. in January 2018. His practice includes estate planning, probate and trust administration, and residential and commercial real estate. Brian also focuses on guardianships of minors and disabled adults and has been named to the approved Guardian ad Litem lists for Cook County, DuPage County, Kane County and Lake County. Brian dedicates time to pro bono work with Chicago Volunteer Legal Services representing or advocating on behalf of minors and disabled adults.
Brian is a member of the American Bar, Illinois State Bar, Cook County Bar, DuPage County Bar, and Chicago Bar Associations. He is also a member of the Justinian Society of Lawyers and the Phi Alpha Delta Law Fraternity.
Brian is licensed to practice in Illinois and Missouri. When not practicing law, Brian enjoys spending time with his wife, daughter and son, and exploring new and different culinary experiences.