As businesses re-open or reduce capacity limits, owners, employees and customers are wondering if companies can REQUIRE that employees get the COVID-19 vaccine.
The COVID-19 vaccine is approved and has already been administered to certain people in the United States. President Biden recently said there will be enough vaccines for every American adult by the end of May.
So can businesses require their employees to get vaccinated?
The short answer is yes, usually.
Generally, employers in the United States can require employees to get vaccinated.
If your employees are employees at-will, meaning they can be fired for any reason that is not otherwise illegal (such as discrimination), then you can possilbly fire employees for refusing to get the vaccine as well.
Employment lawyer Lindsay Ryan told CNBC that, “In general, yes, employers are able to mandate the vaccine when it becomes available with, of course, a bunch of caveats.”
Whether certain excuses for employees not to get the vaccine are legally acceptable depends on the state which you are in.
Many other employment lawyers agree, saying that technically yes, employers can require employees to get the COVID-19 vaccine. However, there are exceptions and it also may not be the best idea to make such a mandate but rather strongly encourage employees to get the vaccine.
Certain medical and religious exceptions may allow people to get out of such a requirement, but Ryan stated that fear of taking the vaccine or being “anti-vaxxer” will likely not be a sufficient excuse to not get the vaccine.
Employees can request exemptions from getting the vaccine. The two main exemptions come from the Americans with Disabilities Act (ADA) and Title VII of the Civil Rights Act of 1964.
The Equal Employment Opportunity Commission (EEOC) emphasized that employees with a disability covered under the ADA will be exempt from taking the vaccine if such disability prevents them from getting vaccinated.
Title VII protects people from multiple types of discrimination including religious discrimination. People who refuse to take the vaccine due to religious reasons may also be legally exempt from an employers mandate.
In both of the situations described above, employers cannot require employees to get the vaccine and cannot necessarily fire them for refusing to do so. There may be other legal exemptions that employers must respect.
If an employee requests an exemption, it is important to take it seriously and come up with a plan to accommodate such an employee which might include wearing a mask, working different shifts, working from home, or another reasonable accommodation.
But should you require employees to get vaccinated?
There is a serious temptation to mandate that you employees get the vaccine in order to get business up and running safely again. But mandating vaccinations might cause more controversy.
One reason is that the COVID-19 vaccines have been authorized for emergency use, meaning that they have not gotten full regulatory approval and are considered “experimental.”
The status of the COVID-19 vaccine makes it more difficult to determine legal consequences. Other vaccines, such as the flu shot, when mandated usually have been fully approved for use and have not been in this experimental phase. Thus, there is no real precedent for what to do or what the law is in these situations.
Requiring vaccination may make more or less sense depending on the type of business you are in. Typically, healthcare workers are required to get certain vaccines and are even required to get the flu shot every year.
So, if you work in the healthcare industry or another place where there is high risk for virus transmission, it might make more sense and be more common practice to require employee vaccination against the coronavirus.
There is also the potential for liability if you mandate that employees get the COVID-19 vaccine, say if an employee experiences bad side effects or experiences some other harm.
An employer is unlikely to be held directly responsible for side effects from a vaccine that was mandatory to work at a place because the employer is not the one actually giving the vaccine; it will be administered by a pharmacy or health care provider.
Any potential claim would again be handled through workers compensation most likely, if the claim is even viable. But if you want to avoid these types of claims all together, it might be better to strongly recommend rather than require your employees to get the COVID-19 vaccine.
In certain situations, it might be more effective to strongly recommend vaccination rather than require it.
Some people are still skeptical of the vaccine, which may make mandating it harder and bring unwanted, bad publicity to a business. People might be more trusting of their employer and feel they are in control of their own body and decisions if they have a choice in the matter.
Sahar Aziz, a professor at Rutgers Law School, predicts that most employers will not require employees to get the vaccine, in the interest of avoiding company conflict, bad publicity, and containing the virus with other, less invasive methods if they can.
If your business is able to work remotely or limit the amount of people in a physical workplace, mandating the COVID-19 vaccine might not be necessary in operating the business safely.
Employers can still mandate mask wearing and social distancing rules in order to protect both employees and customers.
Aziz also predicts that most employers will encourage the vaccine and may mandate it if the community is not being vaccinated at a certain rate. Or employers may just wait for a local, state, or federal vaccination mandate if they believe that will happen.
Overall, while you can mandate employees to get the COVID-19 vaccine (with certain exceptions), it is not clear whether or not you should mandate it. The decision ultimately lies with the employer and many factors are to be considered in this decision.
If you own a business, talking to a business lawyer about vaccine policies is a good idea. If you work for a business and don't agree with their vaccine policies (i.e. you don't want to get one or don't feel comfortable working with people who haven't gotten one), a lawyer can also help.
We can match you with an attorney who will work with you for an affordable price.
This article is intended to convey generally useful information only and does not constitute legal advice. Any opinions expressed are solely those of the author, not LawChamps.
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