Can Employers Require COVID-19 Vaccines for Employees?

As COVID-19 vaccines become more readily accessible to the general public, many employers want to know if they can require their employees to take the vaccine. And if they can, should they? The short answers are yes, they can, and it depends on the situation. This post will examine whether employers have the legal authority to require that employees receive the COVID-19 vaccine, discuss the legally required exemptions an employer must offer, and consider what an employer ought to keep in mind when deciding whether to mandate the COVID-19 vaccine as a condition of employment.

Legal Authority and Exemptions

According to the Equal Employment Opportunity Commission (EEOC), the federal agency responsible for advising employers about workplace discrimination, an employer can mandate a COVID-19 vaccine as a condition of employment, subject to reasonable accommodation requirements for medical disabilities and sincerely held religious beliefs.

On December 16, 2020, the EEOC issued guidance stating employers have the legal right to require their employees receive a COVID-19 vaccination. According to the guidance, a vaccine mandate is lawful only if there are exceptions for employees with disabilities, protected by the Americans with Disabilities Act, and employees with sincerely held religious beliefs, protected by Title VII of the Civil Rights Act of 1964.

Suppose an employee has a medical or religious reason that prevents her from taking the COVID-19 vaccine. In that case, employers are legally required to attempt to accommodate that worker before any adverse action is taken against the employee. An employer cannot lawfully terminate an employee without entering into the accommodation process.

Possible accommodations for workers who cannot take the vaccine may include wearing a mask, wearing additional personal protection equipment, signing a liability release, working from home, or working separately from others at the workplace. For instance, if it is possible to achieve the same level of safety by having the employee work remotely, and remote work is suitable for that job such that it is a reasonable accommodation, then it would not be lawful for the employer to terminate the employee.

If there are no reasonable accommodations available, or the only accommodation would place an undue hardship on the employer, then it may be lawful for the employer to fire the employee.

Voluntary or Mandatory Vaccine Requirement

Employers have the legal authority to require employees to receive the COVID-19 vaccine, but should they? It depends. Each business is different, and analysis should be organization-specific. Employers should keep the following things in mind when setting a vaccine policy for their organization: liability, type of work, and the benefits of both a voluntary and mandatory vaccine requirement.

Liability

Employers must acknowledge that liability can go both ways in the workplace vaccine debate. If an employer requires a vaccine as a condition of employment and the vaccine harms an employee, there may be a worker’s compensation claim against the employer, in addition to the claim against the vaccine manufacturer. On the other hand, if an employer does not require a vaccine and one of the employees infects another worker or customer, the employer could also be vulnerable to legal liability. Since there is no path completely free of possible legal liability, employers would be wise to review other factors, discussed below, when setting vaccine policy in the workplace.

Type of Work

Employers should consider the type of work their organization does. For example, even before COVID-19, vaccine requirements were not uncommon in the healthcare setting because of the high-risk nature of the job and the proximity to sick people. Other high-risk sectors might include retail stores, manufacturing, hospitality, food processing, entertainment, and food service. These kinds of employers could reasonably require a COVID-19 vaccination because the risk is higher as a customer-facing business—there is a risk to the employee and the customer. Companies with mostly office workers who may be able to work from home, social distance in the workplace, and wear masks, may not need to require a vaccine for their workers because the risk is lower, and there are alternatives available to prevent the spread of COVID-19.

Benefits of Voluntary and Mandatory Vaccine Requirements

A mandatory vaccine requirement might be the right choice for an employer because it protects worker health, reduces the cost of worker absences and lost productivity, keeps the business open and operating, could reduce some legal liability, and benefits public health overall by contributing to higher vaccination rates.

Alternatively, the voluntary vaccine approach could be the right choice for an employer because it could boost employee morale and retention, avoids the administrative challenge of tracking and administering medical and religious exceptions, eliminates the liability of medical and religious discrimination lawsuits, the mandate may not be necessary because of the industry, and the company could still mandate the COVID-19 vaccine at a future date. Some companies are making it voluntary and incentivizing employees to get the vaccine with benefits like extra paid time off, cash bonuses, and gift cards. However, there can be legal issues with incentives, so check with your counsel.

Conclusion

Although some employers are taking a wait-and-see approach regarding a company position on vaccines, it would be wise for employers to develop a position sooner rather than later so employees know what to expect and can prepare. When determining company policy on vaccines, employers should consider legal liability, type of work, and the benefits of both the voluntary and mandatory vaccine requirements to their organization. As always, employers should consult experienced legal counsel if they have specific employment law questions.

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Featured Image by Rebecca Sidebotham.