How To Negotiate a Severance Package in New York (Updated for 2024)

I often receive questions about severance packages from people who have just by laid off or facing termination. Here are some common questions and answers. Please note that, because every employment situation is different and employment law issues are very fact-specific, this is not meant to be legal advice. If you’re in the New York City area, you can reach out to me for a consultation.

In this Guide:

1. What is a Severance Package?

2. Why do Employers Offer Severance Packages?

3. How Much Severance Pay is Typical?

4. What is in a Typical Severance Agreement?

5. Why Negotiate the Terms of the Severance Agreement

6. Negotiating Your Severance Package On Your Own

7. Why You Should Hire a Lawyer To Review and Negotiate Your Severance

1. What is a Severance Package?

A “severance package” usually refers to a combination of a severance agreement coupled with severance pay. A severance package is a financial and/or benefits package offered by an employer to an employee who is leaving the company, often due to reasons such as layoffs, downsizing, or termination without cause. The purpose of a severance package is to provide some form of financial assistance and support to the departing employee during the transition period after leaving the job.

The terms “severance package,” “severance agreement,” and “severance pay” are often used interchangeably.

What is a severance agreement?

A severance agreement is a a document or set of documents that an employee has to sign in order to receive the severance pay and other benefits. It is a legally binding contract between an employer and the employee who is leaving the company. The purpose of a severance agreement is to outline the terms and conditions of the severance package offered to the departing employee and to clarify the rights and obligations of both parties during the transition period.

In return for signing the severance agreement and receiving the benefits, the employee gives up their right to sue the company for any and all legal claims they may have against it. The severance agreement may also terms of confidentiality, non-compete, non-solicitation, non-disparagement, and return of company property.

It’s essential for both the employer and the employee to carefully review and understand the terms of the severance agreement before signing. Employees should seek legal counsel to ensure that their rights are protected and that they fully comprehend the implications of signing the contract.

Once both parties agree to the terms and sign the severance agreement, it becomes legally binding, and the terms and conditions within it must be adhered to by both the employer and the departing employee.

Here at The Fu Firm PLLC, I can review your severance agreements to ensure that you understand every word that it contains, every benefit you are entitled to, and every obligation that it places on you. I have experience reviewing and negotiating terms of severance agreements provided by multi-national corporations, non-profit organizations, and small businesses. I often charge a flat fee for reviewing severance agreements, which includes time spent for legal research, editing your agreement, and an in-depth meeting to discuss each section and ensure that you are comfortable and understand what it means.

What are severance benefits?

Typically, a severance package may include a combination of the following benefits:

1. Severance Pay: This is a lump sum payment given to the employee as compensation for the termination of their employment. The amount of severance pay is often based on the employee's length of service, salary, or a specific formula defined in the employment contract or company policies.

2. Continuation of Benefits: Some severance packages may include a continuation of health insurance (COBRA) or other benefits for a specific period after the employee's departure. For example, as part of a severance package, some employers will offer to cover reimbursement of the employer’s COBRA premium for some period of time. The purpose of the continuation of benefits is to help bridge the gap between leaving one job and potentially starting a new one with benefits.

3. PTO (Paid Time Off) Payout: Employees may be compensated for any unused vacation or paid time off days that they have accrued but not used up to the date of their departure.

4. Retirement Account Contributions: In some cases, employers may continue contributing to the departing employee's retirement account during the severance period.

5. Outplacement Services: Larger companies may offer outplacement services to help the employee find a new job. This may include career counseling, resume writing assistance, and job search support.

2. Why do Employers Offer Severance Packages?

Is severance pay mandatory in New York? No - in New York, there is generally no legal requirement for employers to provide a severance package to their employees upon termination, layoff, or resignation. Employers usually do not offer severance packages out of the goodness of their hearts. Rather, employers offer severance packages for business reasons.

Some of the common reasons why employers offer severance packages include:

1. The Employment Contract: Sometimes, the terms of the employment agreement with an employee requires a severance package.

2. Legal Protection: Including a severance agreement as part of the severance package can provide legal protection for the employer. The agreement may require the departing employee to sign a release, waiving their rights to sue the company for issues related to their employment or termination. This can help shield the employer from potential lawsuits and disputes. Think of this as the employer paying for peace of mind.

3. Smooth Transition: When an employee is leaving the company, either voluntarily or involuntarily, a severance package can encourage them to cooperate during the transition period. This helps ensure a smoother handover of responsibilities, projects, and knowledge to other team members, minimizing disruptions to the business.

3. How Much Severance Pay is Typical?

If an employer does offer a severance package, there is generally no legal requirement that it offers any specific amount of pay. Each company and situation is different and there are no hard rules. For example, a general guideline to expect a certain amount of years pay for every year that the employee was with the company may not apply in every situation.

An experienced employment attorney should be able to evaluate whether a severance pay amount offer is fair by analyzing different factors, including the employer’s industry, the employee’s length of employment, the employee’s past work performance, the employee’s position, and any leverage the employee might be able to use in negotiations.

4. What is in a Typical Severance Agreement?

A typical severance agreement includes several key terms:

1. Terms of Severance: The agreement defines the specific benefits and compensation the departing employee will receive as part of the severance package. This may include severance pay, continuation of benefits, paid time off payout, or other elements agreed upon by the employer and employee.

2. Release of Claims: I expect every severance agreement to contain a general release of claims section. This is usually the core of the agreement, where the employee agrees not to sue or bring legal claims against the company for issues related to their employment or termination. Basically, the release of claims is what the employer is paying for. In return for signing this release, the employee receives the agreed-upon severance benefits.

   As part of a general release, an employer usually gives up the right to sue the company and recover damages for:

   • unpaid wages, overtime, bonuses, and commissions

   • unlawful working conditions

   • discrimination based upon the employee’s membership in a protected class, including race, ethnicity, disability, or religion

   • hostile work environment or other unlawful harassment, including sexual harassment

   • defamation

   • “wrongful” termination

   However, there are certain rights that an employee cannot waive, such as the right to file a charge of discrimination with the United States Equal Employment Opportunity Commission (“EEOC”). An experienced employment lawyer can advise you regarding the rights you are giving up.

3. Confidentiality: The agreement may include confidentiality provisions that prohibit the employee from disclosing sensitive or proprietary information about the company, its operations, or its employees. The agreement may also include confidentiality provisions that prohibit the employee from disclosing the terms (including the amount of severance pay) of the severance agreement itself.

4. Non-Compete or Non-Solicitation Clauses: Some severance agreements may include language that limit or attempt to limit the departing employee's ability to work for competitors or solicit the employer’s clients or vendors for a certain period after leaving the company. In New York, there are certain restrictions on non-compete or non-solicitation clauses and an employment lawyer may help you analyze whether the severance agreement’s proposed terms are lawful.

5. Non-Disparagement: A non-disparagement clause typically prevents the departing employee from making any negative or damaging statements (even if true) about the company or its employees.

6. Return of Company Property: The agreement typically requires the employee to return any company property, confidential information, or intellectual property upon departure.

7. Outplacement Services: In some cases, the employer may offer outplacement services to help the departing employee find new job opportunities. The terms and scope of these services may be outlined in the severance agreement.

5. Why Negotiate the Terms of the Severance Agreement?

Unsurprisingly, the terms proposed by employers in their “standard” severance agreements usually favor the employer. Here are some things to watch out for:

One-Sided or Overbroad Non-Disparagement Clauses

Most non-disparagement clauses that clients bring to me in the severance agreements given by their employers are one-sided. That means that, while the employee is prohibited from making critical comments (even if true) about the employer, the employer is not prohibited from doing the same about the employer.

When working with someone who has just been terminated, I often counsel them to consider whether they need a mutual non-disparagement clause; that means including language that prohibits the employer (or certain of the employer’s supervisors) from disparaging the employee, especially to future employers.

Non-Compete Agreements

At the national, state, and local levels, there is a lot of momentum towards banning non-compete agreements. This is a quickly evolving area of law, and you may want to consult with an attorney.

1. On April 23, 2024, the Federal Trade Commission passed a new rule prohibiting employers from enforcing non-competes against workers. The final rule was set to go into effect on September 4, 2024, but employer groups brought lawsuits challenging it and, on August 20, 2024, a federal court ruled that the FTC does not have the authority to ban non-competes, and blocked the rule from going into effect.

2. On June 23, 2023, the New York State Legislature passed a bill, S.3100A/A.1278-B, to add a new section 191-d to the New York Labor Law. The new law would state that:

   “No employer or its agent, or the officer or agent of any corporation, partnership, limited liability company, or other entity, shall seek, require, demand or accept a non-compete agreement from any covered individual.”

   In December 2023, Governor Hochul vetoed the bill. A revised bill may be introduced by the legislature in 2024.

3. On February 28, 2024, the New York City Council introduced Int. No. 140-2024, which would amend the New York City Administrative Code to ban non-compete agreements. The proposed new local law would also apply to independent contractors. As of the last update to this article, the bill is still in committee.

6. Negotiating Your Severance Package On Your Own

You may not need to hire a lawyer to review the severance agreement. For example, you may want to save on paying an attorney if you are: (1) okay with the amount of money and other benefits the company is providing, (2) leaving the company on good terms, (3) fully understand all of the terms and legalese in the severance agreement, and (4) just want to sign the agreement and move on. However, if all of the factors above do not apply to your situation, you should consult with an attorney.

If, after reading the above, you still want to negotiate the terms of the severance agreement and severance pay, here are some general tips:

Understand Where the Employer is Coming From and Figure out What You Want

1. Employers don’t usually offer severance packages out of good will or to simply reward an employee for the time they spent there. Even if you think you are leaving on good terms, you should expect that any negotiation is strictly a business transaction. If you want the employer to give up anything of value, then you need to give them a good reason.

2. Many employers are willing to negotiate simple terms, like making a non-disparagement clause mutual, in return for the employer’s signature.

3. On the other hand, if you want the company to increase the amount of severance pay or other benefits, you need a good reason. Put yourself in the shoes of the company’ decision makers and consider what business reasons would compel them to pay you more.

Consider Your Leverage and Make Sure What You Want is Reasonable

New York is an at-will employment state and, unless an employment contract says otherwise, an employer can usually fire someone for any reason, even an unfair reason, as long as it’s not an illegal reason. Therefore, you must consider what that means when you attempt to negotiate a larger severance payment. You must identify a compelling business reason for the company to provide you with more pay or benefits. That starts with having an honest conversation with yourself about what kind of leverage you may have.

Usually, the most compelling reason is a valid threat of a legal claim for discrimination, harassment, unpaid wages, whistleblowing, or other potential liability. Unfortunately, without a lawyer to help analyze the likelihood of success on any such legal claim or whether you have a claim at all, you may not be able to use any legal leverage to the fullest. An employer may dismiss a simple threat to file a lawsuit because it perceives that an employee with a strong claim would have hired an attorney. Sophisticated and/or smart employers usually have their own attorneys or will consult with one, and are likely to have a better understanding than an unrepresented employee about the strength of the employee’s legal claims.

Another potential source of leverage is an employer’s concern about its reputation. Some organizations would be concerned about a former employee telling others the truth about their negative experience working there. However, this may only apply in special circumstances—for example, if your former employer is in a small, close-knit industry or if you are well-known in the industry and can actually affect the company’s business prospects. Unless you know that your former employer is especially sensitive about their reputation, I would caution against overvaluing how much leverage you have here. A simple threat to bad-mouth the company is unlikely to get you a much larger severance payment. Finally, I obviously do not suggest that you should say anything untrue about your work experience; that may open yourself up to legal liability.

How to Make Your Demand

So you have decided to negotiate the contractual language of the severance agreement or the severance pay or both. Before going back to your employer, you need to plan:

1. What specifically you are asking for;

2. What reasons you will give the company (consider your leverage);

3. What you will do if the company agrees to some of your terms;

4. What you will do if the company says no.

In many situations, it cannot hurt to ask for slightly more favorable terms or slightly more severance pay or benefits (such as asking the employer to pay for COBRA premiums). Often, the worse thing that can happen is that the employer says no. While it is possible for the employer to pull the original offer if they believe you are making a demand that is unreasonable but, in my experience, this does not happen because most employers are less likely to be guided by emotion and the original business rationale for making a severance offer remains.

Finally, if you believe the company is open to negotiating, you should both start from a realistic position and leave room to negotiate. If you do decide to negotiate, you should consider both what you are willing to accept and what you are looking for. It is important to start from a realistic position because an extreme demand may kill off negotiations before they really even start. For example, if your employer offered you two weeks’ pay, they may be willing to give you three or four weeks’ pay but are unlikely to bump it up to something like six months’ pay unless you have some real leverage.

With that said, you also want to give yourself and the company negotiating flexibility. Negotiations often involve give-and-take, with both parties making concessions to reach an agreement. By leaving room in your initial offer or position, you have the flexibility to make concessions without compromising your bottom line or the what you want. Using the example above, if the employer offered you two weeks’ pay and you are willing to take three, you may start your opening demand at four or five weeks’ pay.

The Risks of Negotiating Without Representation

You should be aware of the risks of negotiating your severance without a lawyer. First, you may not understand the true value of any potential legal action you may have against your employer, even if you have a good grasp on how strong your claims are or how easily you would be able to prove them in a lawsuit. After all, in any type of lawsuit, there are the components of liability (whether the defendant violated the law), and damages (how much a case is worth).

If you undervalue your legal claims, you risk leaving money on the table and not getting a large enough payment. If you overvalue them, then you may end up with the company refusing to seriously negotiate.

Here at The Fu Firm PLLC, I can review your severance agreements to ensure that you understand every word that it contains, every benefit you are entitled to, and every obligation that it places on you. I have experience reviewing and negotiating terms of severance agreements provided by multi-national corporations, non-profit organizations, and small businesses. I often charge a flat fee for reviewing severance agreements, which includes time spent for legal research, editing your agreement, and an in-depth meeting to discuss each section and ensure that you are comfortable and understand what it means. When it comes to negotiating, I have successfully represented clients on contingency—my fee is based on the amount by which I help to increase the severance payment. I have also represented and counseled clients on an hourly-fee basis.

7. Why You Should Hire a Lawyer To Review and Negotiate Your Severance Agreement

If you are unsure what legal rights you would be giving up by signing a severance agreement you should hire an experienced severance attorney. If you believe that you have strong reasons for the company to be willing to increase the severance payment, a lawyer will help maximize your recovery. Even if you are fine with the amount of severance pay offered and you simply want to move on, the contractual language in the agreement may be unfair to you. A lawyer can help edit the agreement, usually with minimal hassle to you or your former employer.

The Flat Fee Review

Here at The Fu Firm PLLC, I do more than just read the agreement, consider whether the terms are “standard,” and let you know whether it is okay to sign it. Instead, for a reasonable flat fee, I will review the severance agreement and any other employment agreements you may have with your employer and evaluate your entire employment history to determine whether you may have potential legal claims or other leverage to negotiate your severance package.

In many cases, I have identified areas of the severance agreement where the contractual language is too restrictive on the employee and have helped to edit the agreement and counseled the client about how to make those suggestions to their employer. In a typical situation, a client will report back to me that their employer was willing to make reasonable concessions about the language of the agreement.

The Negotiation

Sometimes, I have helped the client discover compelling reasons to negotiate to increase the amount of severance pay and the client decides that they should negotiate. In those situations, I represent them for an additional contingency or hourly fee. An hourly fee is when an attorney is paid a per-hour rate for working for the client. A contingency fee is a percentage fee based on the client’s recovery. If a client comes to me and they already have a severance payment offer from their former employer, my contingency fee is based only on the amount by which I help them increase the severance payment. For example, if an employer offered $5,000 and I help the client obtain another $10,000, then my contingency fee would be a portion of the $10,000.

I have counseled clients on the best strategies to negotiate directly with the company while I remain in the background. I have also negotiated directly with organizations when the client and I determine that doing so would actually add value to the case and come to a resolution.

The takeaway from my experience is that there is no one-size-fits-all solution for each severance agreement issue or each client who has been recently terminated, and that hiring an experienced employment attorney only benefits the client.

Note: This website is attorney advertising and intended only to provide information about the Firm. Nothing on this page, including communications through any forms, creates an attorney-client relationship or constitutes legal advice.

Supreme Court Makes It Easier for Individuals to File Lawsuits for Malicious Prosecution

In a major win for individuals who have had false charges filed against them, on April 4, 2022, the Supreme Court decided Thompson v. Clark. In a 6-3 decision with an opinion by Justice Brett Kavanaugh, the Supreme Court in Thompson decided that, in a civil rights malicious prosecution lawsuit, a criminal proceeding terminated in favor of a plaintiff when the prosecution “ended without a conviction.”

Here’s why that matters:

Under 42 U.S.C. § 1983, an individual who has been accused of a crime and believes that his or her constitutional rights were violated can sometimes sue the police for civil damages.  One type of civil claim is a claim for malicious prosecution under the Fourth Amendment. A civil rights plaintiff has a claim for malicious prosecution against a police officer when the officer: (1) intentionally caused a criminal proceeding to be filed against the plaintiff, (2) without probable cause, and (3) the criminal proceeding was dismissed in favor of the plaintiff.

Prior to Thompson, many courts, including federal courts here in New York, decided that the “favorable termination rule” (element 3 above) required that the criminal proceeding ended in a way that “affirmatively indicates innocence.”  As a practical matter, this was a huge hurdle for a civil rights plaintiff.  For example, a prosecutor sometimes dismisses a case because he or she has determined that there is insufficient evidence to show the accused committed the crime.  In some situations, by the time those charges are dismissed, the accused has already spent significant time in jail waiting for trial, not to mention legal fees, expenses, and time to fight the charges.

Before Thompson, while the accused may feel relieved when the criminal charges get dismissed, he or she could not then file a civil rights lawsuit, even if they have evidence that there was no probable cause to file the charges in the first place, unless they can show that the prosecution believed that the accused was not guilty.

This was an absurd rule because prosecutors rarely explain their decisions on the record.  Therefore, to be able to bring a malicious prosecution lawsuit, the accused would have to either (1) convince the prosecution to memorialize their innocence in some way, or (2) go to trial and obtain an acquittal.

After Thompson, an individual who has been falsely accused of a crime will find it easier to file a lawsuit, because now a proceeding ends in favor of an accused when charges get dismissed without a conviction.  However, “easier” does not mean “easy.”  Importantly, in order to bring a malicious prosecution lawsuit against a police officer, the individual still must show that the police officer knew that there was no probable cause to charge the accused for that crime in the first place. 

If you have had false charges brought against you and those charges were later dismissed, contact The Fu Firm PLLC to discuss whether you may have a legitimate civil rights lawsuit.

Strengthened Whistleblower Protections For Employees in New York Go Into Effect in January 2022

Beginning January 26, 2022, private sector employees in New York will enjoy stronger whistleblower protections.

Under new changes to New York Labor Law section 740, employers cannot retaliate against an employee who discloses or threatens to disclose to a supervisor or to a public body, an activity, policy or practice of the employer that the employee “reasonably believes” is in violation of a law, rule or regulation, or that the employee reasonably believes poses a substantial and specific danger to the public health or safety.

What This Means:

This is a significant expansion of the whistleblower law. Before the changes, Section 740 only provided whistleblower protection for employees who reported or threatened to report actual violations of law which presented a substantial and specific danger to the public health or safety. Importantly, the amended law will protect current employees, former employees, and independent contractors. The prior law only protected current employees.

The amended statute defines “law, rule or regulation” as: (i) any duly enacted federal, state or local statute or ordinance or executive order; (ii) any rule or regulation promulgated pursuant to such statute or ordinance or executive order; or (iii) any judicial or administrative decision, ruling or order.

Under the law, “retaliatory action” means an adverse action taken by an employer or its agent to discharge, threaten, penalize, or in any other manner discriminate against any employee or former employee exercising his or her rights under this section, including:

(i) adverse employment actions or threats to take such adverse employment actions against an employee in the terms or conditions of employment including but not limited to discharge, suspension, or demotion;

(ii) actions or threats to take such actions that would adversely impact a former employee’s current or future employment; or

(iii) threatening to contact or contacting the United States immigration authorities or otherwise reporting or threatening to report an employee’s suspected citizenship or immigration status or the suspected citizenship or immigration status of an employee’s family or household member to a federal, state or local agency.

Penalties:

An employee whose rights have been violated may file a civil lawsuit within two years after the occurrence. If the employer is found liable, the court may order relief, including reinstatement, compensatory damages, punitive damages, and attorneys fees.

New York City Ends Qualified Immunity for Police Officers

On March 25, 2021, the New York City Council passed a law that makes it easier to sue police officers for conducting illegal searches, making false arrests, and using excessive force.  The law “establish[es] a local right of security against unreasonable search and seizure and against excessive force regardless of whether such force is used in connection with a search or seizure.” More importantly, it does not allow for qualified immunity as a defense in any civil lawsuit brought under the law.

Qualified Immunity

To win a lawsuit under Section 1983 of the Civil Rights Act, a plaintiff must prove, among other things, that a constitutional right was violated by a government official.  A plaintiff also has another hurdle. For decades, police officers and other government officials who are defendants in civil suits for alleged violations of constitutional rights have been able to invoke an affirmative defense called qualified immunity.  Qualified immunity, created by the United States Supreme Court, protects government officials from suit for money damages if: (1) their actions do not violate clearly established rights of which a reasonable official would have known or (2) even if the right was clearly established, whether it was objectively reasonable for the officer to believe the conduct was lawful.

Therefore, even if a civil rights plaintiff proves that the government violated a constitutional right, qualified immunity still may protects a government official defendant.  First, if the right was not clearly established, the official is entitled to qualified immunity.  Second, if it is determined that the right was clearly established, then, under the second factor, qualified immunity still protects the official if the court determines that the official’s actions were objectively reasonable in light of the law at the time of the incident.

Qualified immunity is a tough legal roadblock for a plaintiff in a lawsuit against police officers, and is a leading reason why such suits are dismissed.

The New York City Law

Because the Supreme Court has refused to revisit its qualified immunity decisions and Congress has not passed laws limiting or eliminating the defense, New York City, like some other states and municipalities around the country, has taken action by creating a local law.  

The newly created Chapter 8 of the New York City administrative code establishes a local right to be free from excessive force and unreasonable searches and seizures. This local right mirrors the rights conferred by the Fourth Amendment of the United States Constitution and the law explicitly that it is to be interpreted in the same way.  The law also allows individuals to sue police for the deprivation of that right, while explicitly stating that “qualified immunity or any other substantially equivalent immunity” will not shield officers from responsibility.  The law also holds the employer of the officer liable for a violation of the plaintiff’s rights.  Thus, if a plaintiff successfully sues an officer and the officer cannot pay (or if the City refuses to indemnify the officer), the City (and the taxpayers) will be on the hook.

Finally, the law also requires the New York City Law Department— agency that represents the City and its employees in court—to post on its website a list of lawsuits filed under the law.  This allows for more transparency regarding police lawsuits.

What is Qualified Immunity?

To win a lawsuit under Section 1983 of the Civil Rights Act, a plaintiff must prove, among other things, that a constitutional right was violated by a government official.  A plaintiff also has another hurdle. For decades, police officers and other government officials who are defendants in civil suits for alleged violations of constitutional rights have been able to invoke an affirmative defense called qualified immunity.  Qualified immunity, created by the United States Supreme Court, protects government officials from suit for money damages if: (1) their actions do not violate clearly established rights of which a reasonable official would have known or (2) even if the right was clearly established, whether it was objectively reasonable for the officer to believe the conduct was lawful.

Therefore, even if a civil rights plaintiff proves that the government violated a constitutional right, qualified immunity still may protects a government official defendant.  First, if the right was not clearly established, the official is entitled to qualified immunity.  Second, if it is determined that the right was clearly established, then, under the second factor, qualified immunity still protects the official if the court determines that the official’s actions were objectively reasonable in light of the law at the time of the incident.

Qualified immunity is a tough legal roadblock for a plaintiff in a lawsuit against police officers, and is a leading reason why such suits are dismissed.

Can an Employer Require its Employees to Get Vaccinated Against COVID-19?

Employers can require employees to get vaccinated for COVID-19…with exceptions.

This week, Americans received welcome news as the President announced that the U.S. would have enough doses of Coronavirus vaccines for every adult by the end of May.  As COVID-19 vaccines are approved and distributed across the country, business owners and workers are wondering: Can an employer make vaccination mandatory for employees?

The short answer is “Yes.”  The longer answer is “It depends.”  The United States Equal Employment Opportunity Commission recently issued guidance stating that a mandatory vaccine policy is not prohibited under federal employment laws but must account for individual situations.   Notably, employers must understand that the COVID-19 pandemic does not relieve them of their obligation, under laws such as the Americans with Disabilities Act (ADA) and Title VII of the Civil Rights Act of 1964 (Title VII) to accommodate an employee’s disability or sincerely held religious belief. Of course, employers should first consider whether a mandatory vaccination policy is necessary or whether it should instead encourage or incentivize employees to get vaccinated.

Disability-related or Religious Reasonable Accommodations

Under the ADA, employers must provide reasonable accommodations to a qualified employee with a disability to perform the essential functions of a job.  Reasonable accommodations may mean a modification to a workplace-wide vaccination policy.  

Accommodations will vary on a case-by-case basis and, as with any other request for accommodation that an employer may receive, 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, impact of the accommodation on company operations, among other factors.

Employees may also be entitled to a reasonable accommodation based on religious beliefs.   Under Title VII, once an employer is on notice that an employee’s sincerely held religious belief, practice, or observance prevents the employee from receiving a vaccination, the employer must provide a reasonable accommodation for the religious belief, practice, or observance unless it would pose an “undue hardship” to the employer.  The undue hardship must pose an actual cost or burden to the employer.

If an employer has an objective basis for questioning either the religious nature or the sincerity of a particular belief, practice, or observance, Title VII allows the to request additional supporting information.  However, courts have reached a wide range of conclusions on what is a “religious belief,” and employers should proceed cautiously.

An Employer May Ask an Employee to Show Proof of Vaccination 

Under the ADA, an employer may make disability-related inquiries and require medical examinations only if they are job-related and consistent with business necessity.  According to the EEOC, asking or requiring an employee to show proof that they have been vaccinated is not a disability-related inquiry.  Simply requesting proof of receipt of a COVID-19 vaccination is not likely to elicit information about a disability and, therefore, is not a disability-related inquiry.  However, follow-up questions, such as asking why an individual did not receive a vaccination, may elicit information about a disability and are only lawful if they are job-related and consistent with business necessity.  The EEOC has advised that, if an employer requires employees to provide proof that they have received a COVID-19 vaccination from a pharmacy or their own health care provider, the employer may want to warn the employee not to provide any medical information as part of the proof in order to avoid implicating the ADA.

The Takeaway

While the EEOC’s interpretation of federal employment laws is that they do not prohibit a vaccine policy, an employer considering whether to implement a mandatory vaccination policy should first consider whether it is necessary. Employers should also consider whether it may be better to encourage or incentivize employees to get vaccinated instead.

If an employer decides to adopt a vaccination requirement, it must clearly communicate with employees about compliance with the policy.  Managers and supervisors must also know how to recognize an accommodation request from an employee and how such a request should be handled.   If you are a worker with legitimate concerns or objections to vaccination, it is best to clearly raise the issue with your employer.

These guidelines leave a lot of room for nuance and interpretation.  The Fu Firm is ready to answer any questions and help employers and workers navigate these tricky issues.  Feel free to contact us at any time to discuss any issues you may have.