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Is Requiring A COVID-19 Vaccine Discriminatory?

Vaccines have been a major bulwark against the spread of COVID-19, with infection rates lowered among the vaccinated population. Because of this, more and more employers are imposing vaccine requirements on their employees before they will be permitted to return to work, citing workplace safety. There has been legal pushback on this issue, claiming a right not to be vaccinated. In general, federal guidance disagrees, but there are exceptional cases where someone may have a legally protected reason for avoiding vaccination.

Vaccination Status Is Not A Protected Characteristic

Generally speaking, private companies can require their employers to get a COVID-19 vaccination before returning to work, at least according to recent federal guidance. Private entities can make employment decisions based on characteristics that are not legally protected under federal or state antidiscrimination laws, and vaccination status is not one of those characteristics, at least for now. Bills are pending in several states – including South Carolina – seeking to ban any kind of vaccine requirement in the name of “personal freedom.” Federal jurisprudence does not back this up, but the bill remains in committee as of this writing.

That said, there are protected characteristics that may lead a person to decline a vaccination, such as religion or disability. If someone is refused a return to work, or other positive employment actions, on either of those bases, they may have a claim for employment discrimination. In those types of cases, the employee’s religion or disability would be the basis for different treatment, rather than their vaccination status – and since those characteristics are protected, the action would likely be discriminatory.

Potential Issues For Employers Remain

While there is no vague ‘right to personal freedom,’ especially in the workplace, there are potential pitfalls for employers that are related to vaccination status, even though it is not illegal to make employment decisions based upon that status. For example, while it would not be illegal to harass someone on the basis of their vaccination status (though obviously, it would not be optimal in a functional workplace), it would be illegal to harass someone who was not vaccinated due to a religious prohibition, or to a disability – and it can be difficult to determine who has that justification and who does not.

Be advised that if you have a religious or disability-related reason to refuse the COVID-19 vaccine, you have the right to seek reasonable accommodations from your employer in the same manner as you would for any other issue related to this characteristic. They must attempt to accommodate you unless the accommodation would be an undue hardship on the company (which is a subjective determination). Consulting an experienced attorney on this issue may help to clarify your options. 

Get Legal Help Today

While this area of the law continues to evolve, it is always a good idea to consult an experienced attorney to ensure that your plan will pass legal muster. A South Carolina employment discrimination attorney can help you understand whether you have a case, and if you do, how best to approach it. Attorney A. Christopher Potts has been handling employment discrimination cases for years, and the firm of Hitchcock & Potts may be able to help you with yours. Contact our offices today to schedule a consultation.

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