Dec. 29, 2020 -- Now that COVID-19 vaccines are being distributed, you may be wondering whether your employer can require you to get vaccinated.
The answer is “Yes,” with a few conditions, according to new federal Equal Employment Opportunity Commission guidance. The EEOC enforces workplace anti-discrimination laws and has weighed in on COVID-19 preventive measures during the pandemic.
“Any employer can mandate the COVID-19 vaccine, provided they accommodate religious and disability-related objections and the employee receives it from a provider that does not contract with the employer,” says Karla Grossenbacher, head of the workplace privacy group at Seyfarth Shaw, LLP, and chair of the law firm’s employment practice in Washington, D.C.
If you refuse to get vaccinated, you may be worried about being fired. “The EEOC is clear that the first move is not termination,” and that employers have to try to work with employees first. Possible alternatives include asking them to take a leave of absence or work remotely, Grossenbacher says.
"If an employee cannot get vaccinated because of a disability or sincerely held religious belief, and there is no reasonable accommodation possible, [then] an employer could exclude the employee from physically entering the workplace," says Johnny C. Taylor Jr., president and CEO of the Society for Human Resource Management.
Vaccines on Campuses, Too
In a November survey of 2,000 adults by Sykes Enterprises, more than half of parents (58%) of school-age children said they will get their children vaccinated, and 58% of all respondents said K-12 public schools should require it. “This suggests that parents would prefer the same precautions from their students’ peers as they do from their own kids,” authors of the survey report wrote.
Families are already familiar with school vaccine requirements. All 50 states require vaccines -- typically for diseases such as polio, measles, and tetanus -- for children to attend school. But most states allow families to opt out of getting their children vaccinated for religious or personal reasons.
A COVID-19 vaccine for children is still a long way off. While Pfizer has started testing its vaccine in children 12 and older, it could be well into the 2020-21 school year before children can start getting vaccinated against the coronavirus.
According to the survey, slightly more Americans (61%) believe college and university students should be required to get the COVID-19 vaccine. Colleges and universities typically require students to be vaccinated against common diseases such as measles and hepatitis B.
Public Support for Mandates
In the Sykes Enterprises survey, 54% of the 2,000 adults who took part said employers should require onsite workers to take the vaccine. But generational gaps exist. Nearly 60% of baby boomers -- people ages 55 and older -- support the mandate, followed by 57% of those in Gen Z (ages 18-24). Barely half -- 53% -- of Gen X, those ages 45-54, support it, and only 49% of millennials are in favor of a vaccine mandate.
The survey asked the 37% of respondents who said they don’t plan to get the vaccine what it would take to convince them to change their mind. Of those, 13% said they would consider the vaccine if employers required it.
While the EEOC has said businesses can require employees to be vaccinated, at least one state wants to broaden the mandate. Legislation has been introduced in New York that supports an employer vaccination mandate with certain conditions. New York State Assembly member Linda Rosenthal (D) introduced a bill this month that would require all residents to receive a COVID-19 vaccine that is FDA-approved, safe, and effective. The mandate would be triggered if too few residents are voluntarily vaccinated to achieve herd immunity. The legislation allows for a doctor-documented medical exception, according to Employment Law Watch.
Meanwhile, Washington Sen. Doug Ericksen (R) promised on Dec. 16 to introduce a bill that would bar public and private employers, schools, restaurants, state-regulated travel, and public places from requiring COVID-19 vaccination. Ericksen says the bill aims to protect individual rights and freedom of choice, according to The Bellingham Herald.
Different laws and whether workers are represented by a union may also affect who can be required to get a vaccine
Unions representing essential workers -- teachers, nurses, firefighters -- may also take a stand on whether members should be required to be vaccinated. “Employers with a collective bargaining agreement need to evaluate any limitations before requiring vaccinations as a term of employment,” Grossenbacher says.
If employers do require a COVID vaccine and there are side effects, that could trigger a workers’ compensation claim. “The law covers injuries or illnesses that are reasonably related to the job,” says Dorit Rubinstein Reiss, PhD, a law professor at the University of California Hastings College of Law in San Francisco, who serves on the nonprofit Vaccine Working Group on Ethics and Policy.
Workers can legally refuse to be vaccinated if they can show that it would cause medical harm, such as an allergic reaction. Reiss recommends they consult with their doctor, who would need to provide documentation.
Workers can also legally object for religious reasons. For example, Muslims and Jews have objected to flu vaccines made with pork-based gelatin, because pork is off-limits in their religion, says Reiss. And some employees have objected for religious reasons to vaccines made from cell lines taken from aborted fetuses.
But that doesn’t mean that employers have to accommodate these objections if they can show that the worker’s presence poses a direct threat to the health and safety of others. This has applied in the past to health care workers who were HIV-positive or those with an alcohol problem, says Reiss.
Although it’s unclear whether the direct threat argument applies to unvaccinated workers, the EEOC has already declared that people with active COVID-19 infections pose a direct threat to others in the workplace and has allowed employers to require job-related COVID-19 testing, says Reiss.
Employers may fear a backlash from employees who oppose vaccine mandates for more general reasons, which could affect their ability to keep and hire new workers.
More than 60% of 100 human resource leaders surveyed in a Dec. 9 poll said they would encourage employees to get vaccinated rather than require it. Thirty-one percent said they believed it to be ethical to mandate a COVID-19 vaccine, and only 3% said they would require employees to show proof of vaccination to return to the workplace. The poll was conducted by Gartner, a business consulting company.
Employment attorneys suggest employers use other ways to encourage workers to get vaccinated, such as vaccination education campaigns, covering any costs associated with getting the vaccine, and providing incentives to employees who get vaccinated, like paid time off.
They can also lead by example by getting vaccinated themselves. “You want to encourage buy-in by walking the walk, for example sending out a short video clip of the CEO rolling up his/her shirt sleeve to get vaccinated,” says Grossenbacher.
From a public health perspective, the more people who get vaccinated, the less likely the virus will be transmitted from one person to the next. “I am not sure mandates will be needed to achieve herd immunity if the demand for the vaccine is high. We’re likely to see just as many people vaccinated as without them,” says Michael Mina, PhD, an assistant professor of epidemiology and a faculty member in the Center for Communicable Disease Dynamics at Harvard T.H. Chan School of Public Health in Boston.