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 SHRM, 60% of organizations say they will not require the vaccine for employees while 35% remain unsure—and 74% of the unsure will still encourage their employees to get the COVID-19 vaccine.
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 future, the COVID-19 vaccine may end up being as common as the flu shot, but presently it’s a polarizing topic for many employers, and 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 they need to be aware that employees can legally object for several reasons, including medical reasons, religious objections, or in some states 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 that are in favor of requiring vaccines, but bosses should tread carefully, warns Feldman.
Because 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 new guidance on employers’ federal rights during the pandemic, suggesting employers have a right to create a policy that mandates vaccines, with some exceptions.
Policies must allow for medical and religious exceptions
If an employer mandates vaccines, it must allow exceptions for an employee’s sincerely held religious belief or for an employee’s health issue that make it dangerous or not medically recommended for an employee to get the vaccine.
“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, in several cases coming to different conclusions about whether to allow mandatory vaccination policies.
For example, New York is considering a law to require the COVID-19 vaccine, while state legislators in Washington and South Carolina have introduced bills that would make it illegal for employers to require a vaccine, and Minnesota’s version of the bill would make it a felony punishable with jail time for employers who mandate their employees get the COVID-19 vaccine.
Employers must offer reasonable accommodations
So before an employer fires an employee for not getting a vaccine, the employer needs to ensure they are not violating the Americans With Disabilities Act or Title VII or possibly any of their state laws which require providing reasonable accommodations based on medical reasons or religious beliefs, like allowing remote work.
“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 companies managed to function with no vaccinated employees, the presumption is that there will be reasonable accommodations that can be made for employees who are unable to be vaccinated now that they have or will soon have the 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 that it is too big a risk and, therefore, would create an undue hardship to allow 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 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 state laws evolve.”
For now, no matter what percent of workers have received the vaccine, all COVID-prevention methods should still be mandated, even for those workers who have already received the vaccine: frequent handwashing, social distancing, and mask-wearing should continue to be mandated.
Navigating work and hiring post-COVID-19 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.
*Amy E. Feldman is the General Counsel of the Judge Group, Inc., an international business solutions company, and she is also a nationally-syndicated legal correspondent with experience in employment law and sexual harassment defense.
Legal Disclaimer: This article is not intended as a substitute for professional legal advice. Always seek the advice of an attorney regarding any legal questions you may have.