Can (and Should) My Business Mandate the COVID-19 Vaccine for Employees?

Just a year ago, businesses across the United States shuttered temporarily in response to the novel coronavirus. Some of these businesses could not weather the virus storm and closed for good. Now that  COVID-19 vaccines are available, many businesses are wrestling with deciding when to resume in-person operations and bring their staff back full-time. At the time of writing, 1.5 million doses of the vaccine are being administered across the United States each day according to the Centers for Disease Control and Prevention. Along with trying to adapt their businesses to the next new normal—one that includes a vaccine for this deadly virus—employers and workers alike are trying to figure out whether employers can (and should) require the COVID-19 vaccine for employees.

In the absence of a contract specifying otherwise, employment is generally considered to be at will.  At-will employment means that the employer can terminate an employee at any time and for any reason, except an illegal one, without incurring any legal liability. Similarly, an employee can leave a job for any reason at any time without legal backlash. Accordingly, employers have the ability (with some limitations) to establish health and safety policies for the workplace, and they can generally terminate employees who do not comply without the risk of liability. However, many have questioned how this general rule applies to an employer’s vaccine mandate.

In December, the Equal Employment Opportunity Commission (EEOC) indicated that employers would be allowed to encourage or require their employees to receive the COVID-19 vaccine. According to the EEOC, “[i]f a vaccine is administered to an employee by an employer for protection against contracting COVID-19, the employer is not seeking information about an employee’s impairments or current health status and, therefore, it is not a medical examination.”  Additional information and guidance can be obtained from the National Labor Relations Board and in Texas, the Texas Workforce Commission. 

Nevertheless, if employers opt to mandate the vaccine, they must comply with current workplace regulations, including the Americans with Disabilities Act (ADA) and Title VII of the Civil Rights Act of 1964 (Title VII). Generally speaking, at both the federal and state level, employers must reasonably accommodate employees with certain disabilities or religious beliefs that preclude them from receiving the vaccine. If an employee has a medical condition that makes it unsafe for the employee to be vaccinated (for example, Guillain-Barre Syndrome), requiring the vaccine could give rise to a claim under the ADA. Also, anyone with a religious objection to the vaccine may be protected under Title VII.

Accommodations for employees falling under the ADA or Title VII could include:

• Remote work
• Additional personal protective equipment
• Working in an area or location that does not require interactions with other employees or clients.

As long as the employer can reduce or eliminate the threat of harm to the employee or others through these accommodations, the employer cannot fire the employee and must offer accommodation.

Some experts say that it may be better to simply encourage rather than mandate the vaccine. Although businesses could be subject to lawsuits by employees and customers who claim that they contracted the virus at the business, mandating the vaccination could have similar repercussions, especially if employees experience side effects or complications from the vaccine that could be considered an injury (may generate a Worker’s Compensation or similar claim).

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What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws, U.S. Equal Employ. Opportunity Comm., https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws (last visited March 8, 2020).

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Normally, vaccines are developed over the course of years, not months, and many people are worried about the unusually short period of time for scientific research before this vaccine became available.  The type of industry and workplace should also be considered in determining whether to require the vaccine. In the healthcare industry, it may make sense to require the vaccine because healthcare workers are on the front lines as they care for the public. For example, it is common to require healthcare workers to get an annual flu shot.

Some argue that the farming and food production industries should also require employees to receive the vaccination. Others advocate for vaccinating grocery store and retail workers. Some employers have begun to make preparations so that they can provide the vaccine to workers who want it.  In this situation, it may be advisable for the employer to pay any costs for the vaccine in order to prevent any possible claims based on racial discrimination (disparate impact) or if the cost could drive the employee’s wages below minimum wage.

The bottom line is that even if you can require employees to get the vaccine, you should first weigh competing factors before implementing such mandates. It may make sense to adopt a wait-and-see approach: As the vaccine becomes more readily available, are employees getting it of their own accord? Are you at risk of losing valuable employees if you require a vaccine? It is prudent for business owners to understand the culture of their employees (and customers) and to educate staff about the vaccine. As a business owner, you have worked hard to get your business to where it is today and have made it through a pandemic.

Contact us today to set up an appointment: we can advise you about the pros and cons applicable to your particular business so you can implement the best policies for your unique circumstances.