Can Employers Mandate COVID-19 Vaccinations?

Bringing people safely back to the workplace, means navigating a whirlwind of hurdles, legal challenges and the pressing question: Can employers mandate COVID-19 vaccinations for in-person work?

We'll take a look at the legal implications.

According to new data from the SHRM, 60% of organizations say they will not require the vaccine for their employees, while 35% remain unsure—and 74% of the unsure, will still encourage their employees to get the COVID-19 vaccine, notwithstanding.

Employee concerns and reluctance, further complicate the issue— a Gallup survey indicates that 35% of Americans intend to decline to get the vaccine.

In the near future, the COVID-19 vaccine may end up being as common as the flu shot, but for the moment, it is a polarizing topic for many employers, and for workers too.

We consulted Amy E. Feldman, an employment lawyer at The Judge Group Inc. to weed through the legal complexities.

Employers have a right to mandate vaccines:

As a general rule, an employer can require employees to get vaccinated. But he needs to be aware that, employees can legally object to doing so, for several reasons, including medical reasons, religious objections, or in some cases, for philosophical reasons.

A desire to get employees back into the office and get businesses back to productivity and profits, without sacrificing safety, strongly resonates with employers who are in favor of requiring vaccines. 'Bosses should, however, tread carefully,' warns Feldman.

“Since there is no federal or state law that requires citizens to receive the Covid-19 vaccine, it falls to employers to nudge the vaccine-hesitant to the vaccine,” says Feldman,

“And many companies are not sure how far they can go, when creating vaccination policies.

“To help employers understand their rights and their responsibilities, the Equal Employment Opportunity Commission, issued a new guidance on employers' federal rights during the pandemic; suggesting that employers have a right to create a policy that mandates vaccination, with some exceptions.

Policies must allow for medical and religious exceptions:

If an employer mandates vaccination, exceptions must be allowed for the employee's sincerely-held religious beliefs, or for an employee's health issues, that make it dangerous, or not medically recommended for him or her to get the vaccinated.

“It is worth noting that, a vaccine hesitancy is not usually considered a sincerely-held religious belief, under federal law, but some state laws provide employees a greater ability to refuse the vaccine, on the basis of 'philosophical' beliefs,” Feldman states.

“Nine states have, or are currently debating laws that prevent mandatory vaccinations, and in several cases, arrive at different conclusions, as to whether or not to allow mandatory vaccination policies.

For example, New York State is considering a law that mandates the COVID-19 vaccine, while state legislators in Washington and South Carolina, have introduced bills that would make it illegal for employers to mandate a vaccine; and Minnesota's version of the bill would make it a felony, punishable by jail term for employers, who mandate their employees to get the COVID-19 vaccine.”

Employers must offer reasonable accommodations:

“So, before an employer fires an employee, for not getting vaccinated, the employer would need to ensure that he is not violating the Americans With Disabilities Act or Title VII, or possibly, any of their state laws which require providing reasonable accommodation, based on medical reasons or religious beliefs; such as allowing working from home.

“In workplaces where there is the possibility of working from home, or using PPE, the employer must offer those accommodations,” Feldman says.

“Given that we did not have the vaccine until recently, and that, companies managed to function with no vaccinated employees, the presumption is that, there will be reasonable accommodation that can be made for employees who are unable to be vaccinated, now that they have, or will soon have access to a vaccine.”

Employers wise to take a wait-and-see approach:

“That said, there will be workplaces, like hospitals or nursing homes, that will determine this to be too big a risk and, likely to create an undue hardship, allowing unvaccinated workers on-site,” Feldman explains.

“So there may be situations in which, without a vaccine, the employee becomes unable to perform the essential functions of his/her job, and will therefore need to look for another position.

The situation is rapidly evolving.

“While most people want to take the vaccine as soon as it is available to them, employers are wise to wait and see before mandating policies that may need to change, as the vaccine-supply changes, or as state laws evolve.”

For now, no matter what percentages of workers have received the vaccine, all COVID-prevention protocols should still be mandated, even for those workers who have already received the vaccine: frequent hand washing, social distancing, and mask-wearing should continue to be mandated.”

“Navigating work and hiring post-COVID-19 employees will be an ongoing challenge for 2021.”

For more articles like this, that can help you manage this new way of working, visit our resource center, The New Normal: Work after COVID-19.

By Amy E. Feldman

Author is the General Counsel of the Judge Group, Inc., an international business solutions company