If I File A Charge With The Eeoc After Signing A Waiver Will I Have To Return My Severance Pay
No. Because provisions in severance agreements that attempt to prevent employees from filing a charge with the EEOC or participating in an EEOC investigation, hearing, or proceeding are unenforceable , you cannot be required to return your severance pay –or other consideration –before filing a charge.
Can An Employer Require An Employee To Be Vaccinated
Employers can only require their employees to be vaccinated where:
- a specific law requires an employee to be vaccinated
- the requirement is permitted by an enterprise agreement, other registered agreement or employment contract , or
- it would be lawful and reasonable for an employer to give their employees a direction to be vaccinated, which is assessed on a case-by-case basis .
One or more of these circumstances can apply when an employer is requiring an employee to be vaccinated. For example, an employer could rely on a state public health order that requires their employee to be vaccinated to give the employee a lawful and reasonable direction not to work unless they are vaccinated.
Employers should also consider how protections for employees under anti-discrimination laws may apply. Learn more at How does a requirement to be vaccinated interact with anti-discrimination laws?
An employer may in certain circumstances be required to direct employees to get vaccinated to comply with obligations under a work health and safety law. Information on work health and safety obligations is available from Safe Work Australia. Go to Commonwealth, state or territory workplace health and safety regulators to learn what work health and safety laws apply.
Employers should get their own legal advice if theyre considering making coronavirus vaccinations mandatory in their workplace.
Some employees may have questions or concerns about getting vaccinated. You can:
If A Health Care Provider Declines To Assess Or Treat An Unvaccinated Worker What Actions Are Taken To Assist The Worker
WorkSafeBC expects that these types of situations will rarely happen as most professional governing bodies do not support their members declining to provide services because a patient is unvaccinated. If these situations occur, WorkSafeBC will investigate the circumstance with the provider to ensure they have an accurate understanding of the situation. If a provider declines to assess or treat an unvaccinated injured worker, alternate service/treatment providers or options for the worker will be explored.
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Questions And Answers: Religious Discrimination In The Workplace
This technical assistance document was issued upon approval of the Chair of the U.S. Equal Employment Opportunity Commission.
The contents of this document do not have the force and effect of law and are not meant to bind the public in any way. This document is intended only to provide clarity to the public regarding existing requirements under the law or agency policies.
As a result of the Supreme Courts decision in Our Lady of Guadalupe School v. Morrissey-Berru, we are currently working on updating this webpage.
Title VII of the Civil Rights Act of 1964 prohibits employers with at least 15 employees, as well as employment agencies and unions, from discriminating in employment based on race, color, religion, sex, and national origin. It also prohibits retaliation against persons who complain of discrimination or participate in an EEO investigation. With respect to religion, Title VII prohibits:
The following questions and answers were adapted from EEOCs Compliance Manual Section on Religious Discrimination, available at , which contains more detailed guidance, legal citations, case examples, and best practices. It is designed to be a practical resource for employers, employees, practitioners, and EEOC enforcement staff on Title VIIs prohibition against religious discrimination, and provides guidance on how to balance the needs of individuals in a diverse religious climate.
State Laws And Employer Vaccine Requirements
In response to federal guidance, legislation has been introduced in many states to prohibit or restrict employers, including public employers, from requiring COVID-19 vaccinations as a condition of work. As of July 29, such legislation had been enacted in 7 states and was pending in two others. As a result, even when employers comply with all federal law requirements, it is possible that vaccine mandates could be challenged under state laws.
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L Vaccinations Title Vii And Religious Objections To Covid
The EEOC enforces Title VII of the Civil Rights Act of 1964 , which prohibits employment discrimination based on religion. This includes a right for job applicants and employees to request an exception, called a religious or reasonable accommodation, from an employer requirement that conflicts with their sincerely held religious beliefs, practices, or observances. If an employer shows that it cannot reasonably accommodate an employees religious beliefs, practices, or observances without undue hardship on its operations, the employer is not required to grant the accommodation. See generally Section 12: Religious Discrimination EEOC Guidelines on Discrimination Because of Religion. Although other laws, such as the Religious Freedom Restoration Act , may also protect religious freedom in some circumstances, this technical assistance only describes employment rights and obligations under Title VII.
L.1. Do employees who have a religious objection to receiving a COVID-19 vaccination need to tell their employer? If so, is there specific language that must be used under Title VII?
Employees must tell their employer if they are requesting an exception to a COVID-19 vaccination requirement because of a conflict between that requirement and their sincerely held religious beliefs, practices, or observances . Under Title VII, this is called a request for a religious accommodation or a reasonable accommodation.
Vaccinations For Contractors And Temporary Employees
For workers employed by contract firms or temporary help agencies, the staffing agency and the host employer are joint employers and, therefore, both are responsible for providing and maintaining a safe work environment. The extent of the responsibilities the staffing agency and the host employer have will vary, depending on the workplace conditions, and should be described in their contract . An emphasis should be made among those whose native language is not English, to ensure that they understand how vaccination benefits them as well.
If you plan to offer vaccination at your workplace, consider providing vaccination to all people working at the workplace, regardless of their status as a contractor or temporary employee. What is most important is to encourage everyone at the worksite to be vaccinated, no matter what their work arrangement is. If you do not plan to or are unable to offer on-site vaccination, consider providing information to those at the workplace about how to explore options for vaccination in the community.
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Vaccine Requirement More Likely In Health Care Other High
The industry most likely to require COVID-19 vaccinations for workers is health care, where most employers already require workers to get a flu shot annually. In fact, interim guidance from the Centers for Disease Control and Prevention on which groups might be among the first to have access to a coronavirus vaccine placed healthcare personnel likely to be exposed to or treat people with COVID-19 at the top of the list.
But once enough doses of a vaccine have been produced for distribution to the broader public, some employers might start to consider a mandate.
“For example, essential workers in retail stores or in food production plants, such as a meat-packing plant, seem to be at high risk, Reiss says. Those employers could reasonably require , because remember, if an employee doesn’t vaccinate, it’s not just a risk to them. It’s a risk to other employees, and if it’s a customer-facing business a risk to the customers. So, in high-risk places, I think it’s reasonable.”
Some companies may make inoculation voluntary but make it as easy as possible for workers to get the shot. For instance, Ford already has purchased twelve of the ultracold freezers required to store doses of Pfizers vaccine so it can provide the shot to employees who want it.
For those workers who might be told to get a vaccination, remember to raise any concerns you might have with your employer.
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Which Court Rulings Apply To You
Two points to note:
1. The recent and pending executive orders of the Biden administration do not overrule prior court decisions. Nor do the executive orders overrule congressional statutes that allow for exceptions to vaccine mandates. The Civil Rights Act, the ADA, and the Rehabilitation Act are all congressional statutes. An executive order cannot overrule a court ruling or a federal statute that Congress has passed. Generally, the only way the government can invalidate a prior court ruling is by 1) a subsequent decision of the same court or a higher court, or 2) a congressional statute. In general, the only way the government can invalidate a congressional statute is by 1) a subsequent congressional statute or 2) a court ruling that the congressional statute is unconstitutional.
2. As I have said, courts around the country have made different rulings on vaccine mandates. Some employers are telling their employees, A court ruled this, so this is what you have to do. But, the employers arent telling their employees which court made the ruling. A court ruling is only binding on you if it was made by a court with jurisdiction over your region.
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Support To Help Resolve Employment Disputes
Normal employment law and processes continue to apply. Employers should take care to be fair and reasonable in their employment decisions and work in good faith with employees and unions before deciding on any employment outcomes.
Employees will be able to bring a personal grievance if they feel they have been unjustifiably dismissed or disadvantaged as a result of a decision their employer has made about vaccination.
Employers and employees can access support from MBIEs mediation service to resolve employment problems.
Should mediation not resolve the dispute, the Employment Relations Authority or Employment Court can determine the issue.
Disability Accommodations And Vaccines
Under the Americans with Disabilities Act , employers must provide reasonable accommodations to qualified employees with a disability, unless the employer can demonstrate the accommodation would create an undue hardship. Reasonable accommodation may include appropriate adjustment or modifications of employer policies, including requirements imposed by a mandatory vaccination policy.
As with any request for an accommodation because of a disability, the employer should engage with the unvaccinated employee to identify potential workplace accommodations. The ADA creates an exception to employers obligations in the event of an undue hardship, which may include hardships associated with accommodation costs, finances of the organization, and impact of the accommodation on company operations, among other factors.
While we are just starting to see challenges to COVID-19 vaccine mandates, there have been rulings on other vaccine mandates in healthcare and government. Still, because the challenges of COVID-19 are so new, we are sure to see new cases and new precedents, and Practical Law continues to follow the issue closely.
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Will I Have To Return My Severance Pay If I File A Discrimination Suit In Court After Signing A Waiver
Under the ADEA, an employee is not required to return severance pay — or other consideration received for signing the waiver — before bringing an age discrimination claim. Under Title VII, the ADA, or the EPA, however, the law is less clear. Some courts conclude that the validity of the waiver cannot be challenged unless the employee returns the consideration, while other courts apply the ADEAs no tender back rule to claims brought under Title VII and other discrimination statutes and allow employees to proceed with their claims without first returning the consideration.
Even if a court does not require you to return the consideration before proceeding with your lawsuit, it may reduce the amount of any money you are awarded if your suit is successful by the amount of consideration you received for signing the waiver. See Part IV.A. Question and Answer 9.
Can Employers Offer Incentives To Be Vaccinated
In general, yes, it is permissible for employers to offer workers incentives to get vaccinated against COVID-19. These could include cash payments, gift cards, or other rewards or penalties. The EEOC guidance notes that federal law generally would not limit the size of such incentives, with one key exception noted below. The guidance also says employers can take other steps to encourage or facilitation vaccination without violating federal laws. These include providing information to educate employees about the vaccine and its benefits and to address common questions and concerns. Employers can also offer time-off for vaccination and to recover from any side effects. The American Rescue Plan Act makes tax credits available to employers to cover the cost of providing paid leave to employees to receive and recover from COVID-19 vaccinations.
Special restrictions on incentives would apply in the case of employers that offer a COVID vaccination program directlyto employees. That is because, prior to administration of the vaccine, CDC requires pre-screening questions about health history, allergies, pregnancy status, etc., and, when the employer or its agent directly provides the vaccine, such pre-screening questions would constitute a disability-related inquiry by the employer.
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Where Is Vaccination Or Testing Required For Workers
New Jersey has announced that all workers in preschool to Grade 12 schools, all workers in certain health care facilities and high-risk congregate settings, all workers at state agencies, authorities, and colleges and universities and all child care workers will be required to be fully vaccinated against COVID-19 or be subject to COVID-19 testing at minimum one to two times per week.
The federal government has announced that all workers at most health care settings, all federal executive branch employees, and all federal contractors will be required to be fully vaccinated against COVID-19 and that all workers at businesses with 100 or more employees will be required to be fully vaccinated or subject to weekly COVID-19 testing.
Health Care Facilities and High-Risk Congregate Settings
All full and part-time employees, contractors, and other individuals who work in covered facilities and settings, including individuals providing operational, custodial, or administrative support, are required to be fully vaccinated or submit to testing. Those facilities and settings include:
If workers in the facility or setting have not submitted proof that they are fully vaccinated against COVID-19, they are required to submit to a minimum once to twice weekly testing.
Private facilities are strongly encouraged to consider instituting requirements above and beyond the baseline that will be required by the State.
Are There Health And Safety Issues Around Mandating Vaccination
Under UK health and safety law, employers also have obligations to reduce health risks to employees and others to a level which is as low as reasonably practicable. The vaccine should be considered as part of Covid-19 risk assessments, as a potential additional measure to control the risks associated with contracting the virus at work. However, it is likely that we will still need to follow social distancing laws and guidance for some time: Sir Patrick Vallance, the government’s chief scientific officer, has warned that face masks may be required until next winter
The vaccine should be considered as part ofCovid-19 risk assessments, as a potential additional measure to control therisks associated with contracting the virus at work.
Health and safety considerations also need to take account of any health risks associated with the vaccine itself for certain groups or even for individual employees. Mandating the vaccine could give rise to claims from employees who suffer an adverse reaction to the vaccine if a link can be established, so medical advice for employees may be required.
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Incentives And Benefits For Vaccinated Workers
Based on limited evidence, guaranteed gift incentives seem to be the most effective financial incentive to vaccine uptake. Approaches that workplaces have used include:
- Cash bonuses
- Examples available in 12 COVID-19 Vaccination Strategies for Your Community
Incentives can also be used to reinforce the message that high vaccine uptake is a collective effort, not just an individual one. Consideration could be given to offering incentives to all employees once the workplace vaccination rate exceeds a specific goal . This will help to avoid concerns about unequal treatment of those not vaccinated due to medical or religious exemptions and avoid tension between those who were vaccinated prior to workplace incentives and those who are vaccinated and receive the incentive.
Collecting Storing And Sharing Information About An Employees Vaccination Status
Information will need to be collected and handled according to the Privacy Act.
Businesses must take reasonable steps to make sure information about an employees vaccination status is collected, used and stored lawfully.
The obligations under the Privacy Act include making sure:
- that workers are aware of how this information will be used
- any intended recipients of the information
- that workers know why it is being collected
- that it is stored securely
- that information reasonable steps are taken to ensure the information is accurate and up to date before it is used.
Employers Are Generally Free To Impose Mandatory Vaccination Policies In The Workplace With A Few Exceptions
By Michael Morra, Attorney
With drug manufacturers racing to develop a COVID-19 vaccine, some workers might be wondering whether their employers can institute a mandatory vaccination policy. In general, your employer can require you to take a vaccine as a condition of your employment, although there are a few exceptions.
Mandatory vaccination policies are nothing new. For decades, schools have required students to receive certain vaccinations in order to attend. And healthcare facilities have long imposed vaccination requirements on doctors, nurses, and other staff. Still, mandatory vaccination policies aren’t the norm in most other employment contexts. That might change with the arrival of a COVID-19 vaccine.
While the law is clear that employers can generally require vaccination, it’s a legitimate question as to whether a mandatory vaccination policy is a good idea for all employers.