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Can Your Boss Force Your Vaccination? Employer Mandates Explained

Dec. 10, 2020, 10:46 AM

U.S. officials are preparing to distribute the first 40 million doses of Covid-19 vaccines by the end of December, with first priority going to the 21 million health-care workers in hospitals, home health care, and other high-risk settings.

Essential workers in other industries are expected to be next in line, although states have the authority to decide who falls in that category. Industries that have been deemed essential under federal guidelines and state orders include transportation, child care, energy, and critical retail, according to the National Conference of State Legislatures.

Yet a Gallup poll published last month shows about four in 10 Americans wouldn’t take a vaccine approved by the U.S. Food and Drug Administration, suggesting the availability of shots won’t guarantee that workers take them.

1. Can employers require workers to get vaccinated for Covid-19?

In general, yes, employers have the authority to mandate vaccination. Most nonunion companies have relatively wide latitude to create such requirements largely because employment relationships are presumed to be “at-will” in nearly every state.

Companies can fire at-will workers for any legal reason, which could include refusal to comply with a vaccine mandate. In addition, employers also have a legal duty to provide a safe and healthy workplace.

2. Can workers raise objections to vaccine mandates based on health concerns?

The Americans with Disabilities Act allows workers to request exemptions from vaccine mandates if they have a disability that’s covered by the law. Employers must communicate with workers who ask for an exemption to determine whether not taking a shot is a reasonable accommodation for their particular disabilities and job responsibilities—and isn’t an undue burden for their employer. Failing to either engage in that interactive process or provide a reasonable accommodation could be grounds for a lawsuit.

Workers with health conditions that compromise their immune systems have a good chance of prevailing on ADA claims if they have doctors’ advice saying they should avoid taking a shot. An employer would need to show that allowing a worker to remain unvaccinated would cause an undue burden or pose a direct threat in the workplace, which would be hard if there are alternatives available like working from home or moving to an area segregated from coworkers.

3. What about religious objections to vaccines?

Title VII of the 1964 Civil Rights Act prohibits workplace discrimination based on religion, giving workers the right to seek an exception to a vaccination mandate based on their religious beliefs. The Equal Employment Opportunity Commission, which enforces Title VII, defines religion beyond membership in a church or belief in God. Religion for the purposes of federal anti-discrimination law covers strongly and sincerely held moral or ethical beliefs, according to the agency. But employers can deny religious accommodations if they would create an undue burden.

4. Does it make sense for employers to require the Covid-19 vaccine?

That depends on the industry and the individual workplace. Many hospitals, for example, call on their workers to get vaccinated for influenza, hepatitis B, and other contagious diseases. The airborne spread of the coronavirus may prompt employers with workers who frequently interact with the public or operate in tight quarters with one another to take a shot.

But given the resistance to getting vaccinated shown in public polling, forcing workers can create practical problems, including the possibility of having to fire valuable and hard to replace workers. Many employers would be better off encouraging and facilitating the use of a Covid-19 vaccine rather than requiring their workers to take it.

To Learn More:

—From Bloomberg Law:

Why Covid-19 Vaccines Can’t Be Silver Bullet: Immunity Explained

Covid-19 Vaccine Mandates at Work Promise Employer Headaches

Covid-19 Employer Vaccination Programs Could Be Sought by OSHA

—From Bloomberg News:

Medical Workers, Long-Term Care Get Nod for First Covid Shot (1)

Vaccines’ Side Effects Risk Sidelining Health Workers Amid Surge

CVS, Walgreens Seek Pharmacists on the Eve of Vaccination Rush

To contact the reporter on this story: Robert Iafolla in Washington at riafolla@bloomberglaw.com

To contact the editors responsible for this story: Jo-el J. Meyer at jmeyer@bloomberglaw.com; Jay-Anne B. Casuga at jcasuga@bloomberglaw.com

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