We are troubled by widespread reports that employers are firing or denying employment opportunities to unvaccinated workers without regard to potential religious or medical accommodations. See, e.g., Susan Edelman and Dean Balsamini, NYPD Puts 4,650 Vaccine Firings on Hold: Insiders, N.Y. Post, May 21, 2022 (reporting that nearly 5,000 NYPD employees are facing potential termination, including an undisclosed amount whose medical and exemption requests were rejected); Liz Hamel et al., KFF COVID-19 Vaccine Monitor: October 2021, Kaiser Family Foundation (Oct. 28, 2021) (1% of all adults lost their job due to the vaccine requirement; 8% of all adults reported that they would ask for an exemption). Government workers may have recourse under civil service laws and labor agreements, and even at-will employees cannot be easily fired here. While we are not promoting an anti-vaccine message, and indeed believe most should be vaccinated, we are concerned about employers disregarding the legally mandated accommodation process.

To be clear, the termination of workers for refusing the COVID-19 vaccine in many instances contravenes federal, state and City laws, unless they are provided with an opportunity to seek exemptions for sincerely held religious beliefs and medical reasons. Notwithstanding the headlines which suggest terminations of all vaccine refusers are permissible, relevant law requires employers to carefully consider requests for religious or medical accommodations.

Regulatory and Statutory Authority

On Dec. 13, 2021, New York City's Commissioner of Health and Mental Hygiene issued an Order requiring COVID-19 vaccinations in all workplaces throughout New York City. While the Order requires that "workers must provide proof of vaccination against COVID19 to a covered entity before entering the workplace, and a covered entity must exclude from the workplace any worker who has not provided such proof," the Order also requires employers to provide "reasonable accommodations for medical or religious reasons." Ord. of the Comm'r of Health & Mental Hygiene to Require COVID-19 Vacc'n in the Workplace, ¶¶ 1, 5 (Dec. 13, 2021). The City's workplace vaccine mandate is modelled after President Biden's Executive Order of Sept. 9, 2021, which ordered federal agencies to "implement, to the extent consistent with applicable law, a program to require COVID-19 vaccination for all of its federal employees, with exceptions only as required by law." Exec. Order No. 14042, 86 FR 50985 (Sept. 9, 2021). The exceptions include accommodations for religious or medical reasons. Neither the City's workplace vaccination requirement nor President Biden's executive order require employers to fire unvaccinated employees.