Recent news headlines about employer vaccine mandates in both public employment and the private business sector, as well as vaccine requirements announced for students and staff at US colleges, have thrust the question of whether employers can require their employees to get a COVID-19 vaccine back into the limelight. The Department of Veteran’s Affairs recently announced that all VA frontline healthcare workers must be vaccinated, and the White House announced that federal employees must either be vaccinated or be tested regularly and wear a mask. These recent developments lead many workers to ask, “Can my employer require a coronavirus vaccine?”
Can an Employer Require Its Employees to Get Vaccinated?
As we noted in our Blog post last December (see here) the short answer is generally, “yes.” Private companies and government agencies can require their workers to get vaccinated as a condition of employment. The U.S. Department of Justice addressed the rights of employers and workers in a legal opinion it recently posted. See DOJ Opinion here. It tackled an argument raised by some vaccine skeptics that the federal Food, Drug & Cosmetic Act prohibits employers from requiring vaccination with shots that are only approved for emergency use, as coronavirus vaccines currently are. The DOJ concluded that the FDA law at issue requires individuals to be informed of their “option to accept or refuse administration” of an emergency use vaccine or drug. But that requirement does not prohibit employers from mandating vaccination as “a condition of employment.”
Similarly, the federal Equal Employment Opportunity Commission (EEOC), the agency charged with enforcing the nation’s laws against discrimination in the workplace, has issued guidance that federal anti-discrimination laws “do not prevent an employer from requiring all employees physically entering the workplace to be vaccinated for COVID-19” even if the vaccine is approved under Emergency Use Authorization.
What if I Can’t Get Vaccinated?
If an employer establishes a COVID-19 vaccine mandate for its employees, that policy is subject to the reasonable accommodation provisions of the Americans with Disabilities Act (ADA) which protects workers from discrimination based on disability, and Title VII of the Civil Rights Act which protects workers from discrimination on several grounds, including religious beliefs. In other words, if a worker has a disability or a sincerely held religious belief that precludes vaccination, the employee may be entitled to a reasonable accommodation under civil rights laws, so long as providing that accommodation does not cause an undue hardship on the employer.
For an employee who can’t receive the vaccine because of a medical condition, before an employer can exclude that worker from the workplace, the employer must show that the unvaccinated employee presents a significant risk of substantial harm to health or safety that cannot be eliminated or reduced through reasonable accommodations. The employer must attempt to accommodate an employee who can’t take the vaccine due to a disability unless there is no reasonable way to do so. Only after conducting a review and finding that the disabled employee cannot be reasonably accommodated can the employer exclude the employee from the workplace. But the decision to exclude the employee does not automatically mean that the employer can simply fire the unvaccinated worker. The employer should review and evaluate whether there are other alternatives such as wearing a face mask at work, social distancing, working a modified shift, periodic COVID-19 testing or the option to work remotely.
Federal law also requires employers to accommodate employees who have a sincerely-held religious belief which prevents them from receiving the COVID-19 vaccine, unless doing so would present an undue hardship to the employer. If that is the case, the employer can exclude the employee from the workplace. But just like with a disabled employee who cannot get the vaccine, an employer cannot automatically terminate the employee. Instead, the employer must decide if any other accommodations can be provided to permit the employee to continue working, such as remote work or work in an alternate location.
If an employee doesn’t meet the criteria for possible accommodation under the ADA or Title VII, an employer may terminate the employment relationship if the employee declines to be vaccinated.