Can My Employer Require Masks and/or COVID-19 Vaccines?
Regardless of whether you think everyone should get vaccinated or no one should, or that everyone should wear a mask or not, it is important to know what your employer can and cannot mandate in the workplace. Rules, guidance and policies are changing rapidly in Illinois. So, while this information is current as of September 2021, changes may be made thereafter.
As an initial issue, let’s review Governor Pritzker’s most recent executive orders. Under COVID-19 Executive Order No. 85 from 8/4/21, Illinois required the use of face coverings by staff, students, patients and visitors over the age of two at all schools, daycares and long-term care facilities. Then on 8/26/21, the Governor issued COVID-19 Executive Order No. 87 to expand the mask mandate to all individuals over the age of two when in an indoor public place. The order stated that face coverings “may be removed by workers at workplaces when they can consistently maintain six feet of distance.” No distinction was made for vaccinated people versus unvaccinated.
Executive Order No. 87 also established certain vaccination requirements. Illinois now requires healthcare workers, public and nonpublic school personnel, and public and private higher education personnel and students to be fully vaccinated against COVID-19 or they must submit to weekly testing. Exemptions are allowed for people who cannot get vaccinated for a medical reason under the Americans with Disabilities Act (ADA) as well as people who request an exemption status due to religious reasons. Those granted exemption status must submit to weekly testing.
Pursuant to the Governor’s executive orders, vaccines are required for healthcare workers, K-12 school personnel, and higher education staff and students or you must submit to weekly testing. Masks are required in all public indoor spaces unless workers can maintain six feet of distance. The vaccination order does not apply to all businesses and workers, but the mask requirement does. That being said, the order does specifically state that, “...nothing in this Executive Order prohibits any entity from implementing vaccination or testing requirements for personnel, contractors, students or other visitors that exceed the requirements of this Executive Order.” The order goes even further by actively encouraging all entities (private businesses) to require vaccinations when it states, “All entities are encouraged to implement robust vaccination and testing programs to reduce the spread of COVID-19.” The language clearly states that employers are encouraged to mandate COVID-19 vaccinations.
Can employers require vaccinations?
In short, the answer is yes. The executive order already mandates vaccinations or weekly testing for healthcare, education and long-term care workers. The order encourages other employers to require the same.
Federal Equal Employment Opportunity laws do not prevent employers from requiring all employees physically entering the workplace to be vaccinated for COVID-19. However, Title VII and the Americans with Disabilities Act do require employers to provide reasonable accommodations for employees who, because of a disability or sincerely held religious belief, do not get vaccinated. The Equal Employment Opportunity Commission provided written guidance concerning both the requiring of vaccinations and on what “reasonable accommodations” are. See https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws
The Occupational Safety and Health Administration (OSHA) has released guidance that indicates employers are allowed, and even encouraged, to mandate vaccinations subject to appropriate exemptions under the ADA or based on religious grounds. See https://www.osha.gov/coronavirus/safework.
If your employer is mandating the vaccine, you can seek an exemption based on a disability under the ADA or if you have sincerely held religious grounds against the vaccine. If exempt, be aware that you may be required to submit to regular testing and reporting of symptoms. Also, the employer must make reasonable accommodations which do not result in undue harm to the employer. This can include things such as making employees wear masks, changing their workstation location or making them work remotely, minimizing contact with other co-workers or customers, and the like.
Does an employee have to pay for COVID-19 testing?
For those who opt to not get vaccinated and instead choose to undergo weekly testing, the question then is whether your employer can require you to bear the cost of the testing. Under Illinois law, an employer CANNOT make an employee pay for the testing (820 ILCS 235/1). Under the Medical Examination of Employees Act, “...no employer shall require any employee or applicant for employment to pay the cost of a medical examination or the cost of furnishing any records of such examination required by the employer as a condition of employment.” So, if your employer requires you to submit to testing for COVID-19, they cannot require you to bear the cost of such testing. They can either provide onsite testing, send you to a medical facility to perform the test or ask you to be tested at one of several free testing sites throughout the state of Illinois.
Keep in mind that guidance and regulations are changing frequently and sometimes contradict other guidance. It is important to check for updates on the websites of the EEOC, OSHA, Department of Labor and Illinois Department of Public Health.
What happens if employers mandate the vaccine and I receive adverse side effects? Are employers responsible?
Under Illinois law, if your employer mandates a vaccine and you suffer side effects of the vaccine that necessitate medical treatment or cause you to miss time from work, you are entitled to compensation under the Illinois Workers’ Compensation Act. You should reach out to an experienced attorney right away to protect your rights. Contact Black & Jones Attorneys at Law, a Rockford-based law firm, for a free consultation at 815-967-9000.