Can Employers Require the COVID-19 Vaccine?
Key Points about mandatory COVID-19 vaccines and workplace guidelines:
- In most cases, mandatory vaccination is lawful. But you must consider various accommodations and liability concerns to stay compliant.
- Your business and industry may also determine whether you adopt a mandatory vaccination policy.
The Pfizer-BioNTech and Moderna COVID-19 vaccines have been approved for distribution. In fact, many frontline workers and elderly individuals have already received their first doses.
As doses become available to the general public, you may be wondering how to tackle the COVID-19 vaccine in your workplace. Regulations surrounding mandatory vaccination are still uncertain. However, current guidance offers some direction to help you make an informed decision.
Can I require my employees to get the COVID-19 vaccine?
The short answer is yes. According to the Equal Employment Opportunity Commission (EEOC), you can require your employees to get the COVID-19 vaccination as a condition of returning to the workplace.
However, the reality isn’t that simple. If you adopt a mandatory vaccination policy, your workplace has to meet certain conditions. You also have to take into account various accommodations and other considerations to stay compliant.
Under Title VII of the Civil Rights Act of 1964, you must accommodate an employee’s religious beliefs or practices, unless doing so would cause undue hardship to your business.
This means that an employee may refuse to get a COVID-19 vaccine due to a “sincerely held religious belief.” If you have a valid reason for questioning the sincerity or nature of the employee’s religious belief, practice, or observance, you have the right to request additional supporting information from them.
However, you should always treat your employee seriously and respectfully. If possible, work with them to determine a reasonable accommodation. This may be remote work, different job responsibilities, or enhanced protective measures.
You must also accommodate employees with disabilities when implementing a mandatory vaccination program.
An employee may be unable to receive a vaccination due to a disability. Under the Americans with Disabilities Act (ADA), you must show that this employee, as an unvaccinated individual, poses a “direct threat” to the health and safety of themselves or others before barring them from the workplace.
What qualifies as a “direct threat” may change on a case-by-case basis. When determining whether someone poses a “direct threat,” consider these factors:
- The duration of the risk
- The nature and severity of the potential harm
- The likelihood that the potential harm will occur
- The imminence of the potential harm
In the case of COVID-19, the “potential harm” typically means being exposed to the virus. To determine whether someone poses a “direct threat,” you may look at:
- The pandemic’s severity in your area
- The employee’s health
- The employee’s job responsibilities
If you determine that an employee who is unable to receive the vaccine due to a disability poses a “direct threat,” you must work with them to determine whether a reasonable accommodation, like remote work or a leave of absence, is possible.
You cannot take any adverse action (such as barring the employee from the workplace) unless there is no way to provide reasonable accommodation or a reasonable accommodation would not reduce or eliminate the threat.
In some instances, pregnancy-related medical conditions can qualify as disabilities. As a result, a mandatory vaccination policy needs to accommodate employees who cannot get the vaccine due to pregnancy-related medical conditions.
Pregnant employees are also covered under the Pregnancy Discrimination Act. This Act prevents discrimination against pregnancy, childbirth, or other related conditions. You must treat these individuals the same way you treat other employees who are “similar in their ability or inability to work.” This means that you may need to provide pregnant employees with reasonable accommodations similar to what you offer employees with disabilities.
If you’re a unionized employer, you may need to bargain with the union before implementing a mandatory vaccine policy. Even if you’re able to waive the union’s right to bargain, they can still bargain about issues surrounding the program. They may also publicly voice any concerns.
Consult your collective bargaining agreement and your legal advisor before taking any action.
Will I be liable for any complications related to the COVID-19 vaccine?
Whether or not you mandate the vaccine, there are some related liabilities you should be aware of.
Injury & Illness
If you mandate the vaccine and someone experiences an injury or illness from it (such as a severe allergic reaction), you may be liable and compensable under workers’ compensation laws.
Consult your workers’ compensation carrier about coverage and claims regarding mandatory vaccination programs.
Occupational Safety and Health Administration (OSHA) Regulations
On the other hand, if you don’t mandate vaccinations, you may violate OSHA regulations. Under the General Duty Clause, you’re required to provide a workplace free from “recognized hazards that are causing or are likely to cause death or serious physical harm to employees.”
Some employees may argue that not requiring vaccines fails to protect them from a hazardous work environment. In most cases, protections like social distancing and masks are enough to satisfy this concern. However, it is something to always keep in mind.
How can I encourage my employees to get the COVID-19 vaccine?
Some employees may not want to receive the vaccine for reasons other than religion, disability, or pregnancy. When this happens, a mandated vaccine policy may be difficult to enforce.
Instead of mandating the vaccine, you may just encourage your employees to get vaccinated. You can even use incentives to boost participation. Consider:
- Providing time off for employees to get their injections
- Covering the cost of the vaccine under your company’s employer-sponsored benefits plan
- Making contributions to the 401(k) plans of employees who receive the vaccine
- Giving employees who receive the vaccine gift cards to local businesses
What else should I be aware of?
COVID-19 workplace policy
If you decide to mandate COVID-19 vaccines in your workplace, create a written policy. This will help you establish clear guidelines and reduce discrimination.
The COVID-19 vaccine process
The Pfizer-BioNTech and Moderna COVID-19 vaccines require two shots to be fully effective. The booster dose for the Pfizer-BioNTech vaccine should be administered about 21 days after the first dose. Similarly, the booster dose for the Moderna vaccine should be administered about 28 days after the first dose. Keep the two doses in mind if you set guidelines for your employees or provide time off.
COVID-19 vaccine side effects
The COVID-19 vaccines may cause people to experience negative side effects like fevers, chills, and headaches. This is the body’s natural response to many vaccines and usually nothing to worry about it.
Just keep in mind that your employees may need a day or two to recover from the side effects. While they may feel sick, their symptoms won’t be nearly as severe as if they were to contract the actual disease.
Whether you mandate the vaccine or not, you may want to provide educational materials that explain the vaccine, how it works, and why it’s effective. The COVID-19 vaccines are quite new, which means that some people may doubt their efficacy. Providing educational resources can help employees feel more comfortable getting vaccinated.
To mandate or not to mandate the COVID-19 vaccine
Balancing your employees’ personal beliefs with overarching health and safety concerns can be difficult, especially when the stakes are so high.
Evaluate your industry, your business, and compliance and liability concerns. Only then can you decide whether mandating vaccines would be best for your business.
For more information about developing a safe return to work policy, check out our blog How to Return to Work Safely During COVID-19 (with Checklist).
For more information about COVID-19 legislation and compliance, check out the COVID-19 category on our blog.
Legal Disclaimer: The information contained in this guide is for general informational purposes only. Under no circumstance shall we have any liability to you for any loss or damage of any kind incurred as a result of the use of the template or reliance on any information provided in this template. Your use of the template and your reliance on any information is solely at your own risk.