So, like more and more workers in California, you are facing a choice of either getting vaccinated by a certain date or face termination from your workplace. However, you really do not or cannot get vaccinated due to a certain medical condition. Below is a number of practical tips that should help you make the right decision in your situation even if there isn’t a perfect solution to this type of dilemma:
The first question you should ask yourself is whether the issue is worth addressing or you are better off simply moving on and finding another job. This will depend on how much you like your current job, which benefits you will be leaving on the table by resigning, and your prospects of finding a comparable or better job out there. If you have started looking for another job, keep in mind that just becuase a potential employer does not require their employees to get vaccinated today doesn’t mean that it can’t change tomorrow. It would be a good idea for you to sincerely discuss this concern during your job interview, and find out what assurances that employer can provide to you that they will not change their policy of non mandating vaccines in the future. That discussion will also provide you with an insight into how the employer handles the whole issue. Are they respectful of your choice not to get vaccinated, or has your bringing this topic alone already rubbbed them the wrong way. If the latter is the case, this might not be a good place for you to work, because even if that company doesn’t mandate vaccines, there is a risk that you will be treated differently because of the management’s general attitude to the vaccine topic. If you decide to resign, you should definitely consider negotiationin an exit or severance package. An experienced employment attorney should be able to help you with this.
If you are determined to do what you can to continue working for the employer, then you have two options – you can either claim (a) religious exemption or (b) medical exemption. Religious exemption from getting vaccinated can be granted to an employee who sincerely holds a religious belief that prohibits him from getting any vaccine or a specific vaccine. Under the law, your can pretty much have your own religius beliefs, and the fact that no one else holds those beliefs doesn’t make yours invalid. This is because under 29 CFR sec. 1605.1 “… The fact that no religious group espouses such beliefs or the fact that the religious group to which the individual professes to belong may not accept such belief will not determine whether the belief is a religious belief of the employee or prospective employee.”
A physician can provide you with a medical exemption from having to get Covid-19 vaccine, based on known allergies to that vaccine’s components or vaccines in general or based on a certain health condition that puts you at a greater risk fo severa side effect or injury as a result of getting the vaccine. Many physicians are reluctant to grant such exemptions because of their own strong pro vaccine beliefs or because of their network’s policy that discourages granting such exemptions, so you have to be ready to contact multiple doctors until you find one who is willing to help you.
It’s important to keep in mind that just because you believe you are eligible for an exemption from being vaccinaed at your workplace, this doesn’t mean that yoru employer is going to automatically grant it. Under the law, an employer has to “reasonably” accommodate such an exemption unless it imposes “undue hardship”. “Reasonable” doesn’t mean perfect and it doesn’t mean the exact accommodation that you are asking for. Thus, some employers who enacted mandatory vaccination policy have allowed some of their employees to be exempt from the vaccination requirement by working fully or almost fully remotely, or by wearing a mask in the office and testing weekly, and by making other accommodations to reduce the risk of potential exposure. Many other employers are far more strict about their vaccination rules and they refuse to grant exemption to anyone, regardless of their reason for needing this accommodation and regardless of their position. While refusing to grant exemption to someone who works closely and frequently with a public is understandable and likely legal, having a one-size-fits-all policy for all employees is likely unlawful as it lead to refusal to accommodation an employee who should be eligible for an exemption, where this type of accommodation can be relatively easily granted and where it would create minimal to no additional risk of exposure to the virus.
If you are thinking about requesting an exemption from your employer, your situation should be assessed on an individual basis in light of your unique circumstances, including the nature of your exemption, your job duties and the nature of your work and work environment (i..e do you work in a crowded space or in a relatively isolated environment when in the office), the employer’s resources and their ability to accommodate you without undue cost or disruption to their business.
Your first step should be having a candid conversation with your empoyer about various options of accommodating your request for exemption which might be available. Have that conversation in person or by video chat if possible as it would be way more effective than exchanging e-mails. You should be as creative as you can in making suggestions for various ways an employer could accommodate or finding compromise between what works for the employer and what works for you. For instance, if the employer suggests that in liu of getting vaccinated, you will have to undergo weekly testing, perhaps you could suggest getting test once ever two weeks. If the employer wants you to work remotely and never come to the office, perhaps you could suggest coming into the office once or twice a week during evening hours when no one else is there, if that’s something you would like to or you need to do to successful perform your job duties. Make sure you remain flexible and open to the employer’s suggestions or counter-suggestions to your ideas.
If your employer unreasonably denies your request for exemption in a situation where it could have been granted without much disruption to their business, this can potentially be a valid basis for a wrongful termination claim. In this type of situaiton, you should generally let your employer fire you, rather than resigning, so that you actually have a case of being terminated.