Can Employers Mandate COVID-19 Vaccinations?

Vaccinations

Employers and employees alike are wondering… can vaccines be required for workers to return to the office? Seems like an easy answer since the law is clear that COVID-19 vaccination can be required as a condition of employment (with certain caveats). However, as the saying goes, nothing is as simple as it seems.

There are many complications, including the allowed exemptions under which an individual can refuse vaccination. Suppose employers do require vaccinations as a condition of returning to the workplace. In that case, they must be prepared to provide reasonable accommodations to employees with disabilities (per the Americans with Disabilities Act - ADA) and religious objections (per Title VII of the Civil Rights Act of 1964.) This protection excludes non-religious beliefs. It also doesn't exempt individuals who object to vaccination because of political views or personal reasons.

The Equal Employment Opportunity Commission (EEOC) defines "religious beliefs" to include traditional theistic beliefs (i.e., those that include a belief in God) as well as sincerely-held non-theistic moral or ethical beliefs about right and wrong. Religious beliefs do not have to be widely held but can be outside any formal religious group. Employers may request supporting documentation to prove such exemption requests.

If either of these exemptions is granted, federal law requires employers to provide "reasonable accommodation" -- work at home, requiring everyone to wear masks at work, special scheduling for non-vaccinated workers, etc. The safety of the workplace also needs to be considered when such accommodations are considered. If non-vaccinated workers pose a threat to the health of other workers, customers, or the general public, certain accommodations may not be possible.

Mandating vs. Encouraging the COVID-19 vaccine

Syringe

The EEOC released guidance in December 2020 stating that employers can require their workers to get vaccinated and may ask employees for proof that they have done so. Employers are bound by law to accommodate employees who object to vaccination because of religious beliefs or because they have a medical condition that makes it unsafe for them to get a vaccine (as stated above).

The Business Roundtable, a lobbying group consisting of CEOs of some of the largest U.S. companies, along with many other U.S. employers, is taking the position of encouraging rather than mandating vaccinations. Doug McMillon, Business Roundtable chair, has said that they see their role as "encouraging it and communicating facts to set an example." Even many hospitals, whose workers are on the front lines, are not mandating vaccinations.

One of the conditions of the Emergency Use Authorization (EUA) for the vaccines is that individuals be told that they can refuse them. Because there is a right of refusal, it may mean that vaccinations cannot be mandated. If employers do mandate vaccine use, there are likely to be court cases that could establish whether mandating the vaccine is legal under a EUA. Some experts believe that courts may take the position that the health of the workplace is more important than an 'individual's rights in this case.

There are risks to either position, it seems. If an employee takes the vaccine as mandated and suffers severe side effects, the employer may have to deal with a 'workers' compensation claim and all that entails. Another risk might result from public backlash, which could develop from any vaccine policy depending on the political environment and on whether people are upset by the decision. If the employer decides to require employees to be vaccinated, a written vaccination policy is the way to go. Of course, the policy must comply with the ADA and Title VII.

So, as we said initially, nothing is as simple as it seems. Right now, you may be left with more questions than answers because there 'doesn't seem to be a single definitive answer to the question of mandating vaccines. In the weeks and months ahead, we probably will see the evolution of mandating vaccines or not. In the meantime, rely on your best judgment and whatever government (state or federal) guidance is available.

Information from the EEOC on this topic can be found at:
What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws | U.S. Equal Employment Opportunity Commission (eeoc.gov)