As we previously blogged, the Biden Administration announced that all employers with more than 100 employees are required to mandate that their employees either get vaccinated or undergo weekly testing. The Occupational Safety and Health Administration (OSHA) is in the process of developing an emergency temporary standard that will outline how the mandate will be implemented and interpreted. The mandate will not take effect until the emergency temporary standard is released, which is expected to happen in the next few weeks. Once the emergency temporary standard is released and the mandate goes into effect, employers should expect to receive requests for accommodations and exemptions from employees.
We have previously discussed that employees may be entitled to accommodations for religious or disability-based objections to the vaccine, but what about employees who claim to have “natural immunity?” Across the country, several employees have filed lawsuits claiming that their employer’s vaccine policies must make exceptions for employees who previously had COVID-19 – i.e., those with “natural immunity.” According to these lawsuits, vaccination is unnecessary and potentially risky for such individuals. The CDC, however, disagrees. On its website, the CDC writes,
“[Y]ou should be vaccinated regardless of whether you already had COVID-19 because:
- Research has not yet shown how long you are protected from getting COVID-19 again after you recover from COVID-19.
- Vaccination helps protect you even if you’ve already had COVID-19.
Evidence is emerging that people get better protection by being fully vaccinated compared with having had COVID-19.”
To date, no court has ruled in favor of an employee seeking an exemption on the basis of “natural immunity.” As it stands, employers are only required to consider accommodation requests from employees who object to the vaccine due to a disability or a religious belief, and a claim to “natural immunity” qualifies as neither. Until the courts rule otherwise, which at this time seems unlikely, employers are free to deny accommodations from employees who claim the vaccine is unnecessarily due to their alleged natural immunity.