En español | With millions of people out of work and millions of others forced to work from home, the pandemic has reshaped the nation's labor force. And it's not done yet. As the unemployed look ahead to getting hired and remote employees prepare for a return to the workplace, many are contemplating the same question: Can they be required to get a COVID-19 vaccination if they want to keep their jobs?
The question has become more urgent since the U.S. Food and Drug Administration (FDA) granted Pfizer-BioNTech vaccine full approval on August 23. The short answer: Yes. An employer can make a vaccination a requirement if you want to continue working there. But there are significant exceptions for potential concerns related to any disability you may have and for religious beliefs that prohibit vaccinations. But now, with many Americans still hesitant to get vaccinated even as the delta variant spreads, more employers are telling workers they either need to be vaccinated or comply with a rigorous regiment of testing, wearing masks and practicing physical distancing if they want to return to work. Refusal to be vaccinated could lead to job loss and also make a person ineligible for unemployment benefits.
On Dec. 16, the Equal Employment Opportunity Commission (EEOC) confirmed that a COVID-19 vaccination requirement by itself would not violate Americans with Disabilities Act (ADA). That law prohibits employers from conducting some types of medical examinations. On May 28, the EEOC reaffirmed that employers can require workers who are returning to offices to be vaccinated for COVID-19.
“If a vaccine is administered to an employee by an employer for protection against contracting COVID-19, the employer is not seeking information about an individual’s impairments or current health status and, therefore, it is not a medical examination,” the EEOC says. The U.S. Department of Justice also has determined that it considers employer vaccine mandates to be legally permissible.
But some employees may be exempted from mandatory vaccinations based on potential concerns related to any disability you may have and for religious beliefs that prohibit vaccinations. And experts say that employers are more likely to simply encourage their workers to get immunized rather that issue a company-wide mandate.
What workers can do
• Seek a vaccine exemption on medical grounds
• Seek a vaccine exemption due to religious beliefs
• Ask for alternative accommodations such as use of personal protective equipment, working separately or working from home
"Employment in the United States is generally ‘at will,’ which means that your employer can set working conditions,” says Dorit Reiss, a law professor at the University of California, Hastings, who specializes in legal and policy issues related to vaccines. “Certainly, employers can set health and safety work conditions, with a few limits."
Those restrictions generally are tied to the federal Americans with Disabilities Act (ADA) and Title VII of the Civil Rights Act of 1964. If employees have medical reasons or sincerely held religious beliefs that prevent them from taking a potential coronavirus vaccine, employers could be legally required to give the workers some reasonable alternative to continue to work, Reiss says.
The EEOC guidance notes that even if an employer finds that a worker who cannot be vaccinated due to disability poses a risk to the workplace, the employer cannot exclude the employee from the job — or take any other action — unless there is no way to provide a reasonable accommodation that would reduce this risk to others.
"That might be a [wearing a] mask, a working from home, or a working separately from other people alternative. As long as it's not too significant a barrier for the employer,” Reiss says. “If you can achieve the same level of safety as the vaccine via mask, or remote working, you can't fire the employee. You need to give them an accommodation."
Vaccine recommendations vs. requirements
The potential medical and religious accommodations are just two of the factors employers will have to consider when deciding whether to put a vaccination requirement in place. Experts say that given all the different concerns employers will need to balance with a potential COVID-19 vaccine, some might choose to simply recommend their workers get immunized rather than make vaccination a condition of employment. Other employers, including the federal government, are giving workers the option to either get vaccinated or undergo regular testing for COVID-19 infection.
More employers are requiring their employees to get vaccinated, and many now will be legally required to enact such mandates. On Nov. 4, the White House released its guidance requiring all businesses that employ 100 or more workers to have its employees either be vaccinated or take weekly tests to prove they are not infected with the coronavirus. More than 80 million workers will be affected by this new requirement.
Employers also need to weigh any liability issues a vaccination requirement might raise. Some federal lawmakers already have raised concerns that employers are vulnerable to lawsuits from workers and customers who might have contracted COVID-19 at the business. A mandate that all their employees get inoculated could complicate the risks for companies.
"It's a treacherous area for employers,” says Jay Rosenlieb, an employment law attorney at the Klein DeNatale Goldner law group in California. “The reason it's treacherous for employers is liability that arises from requiring a vaccine where the vaccine goes sideways and creates harm to the employee. That's going to probably be a workers compensation claim against the employer. And, of course, some kind of claim against the vaccine manufacturer. There's a lot of weighing that goes on here."
L.J. Tan, chief strategy officer for the Immunization Action Coalition — an advocacy group that supports vaccinations — says that because potential COVID-19 vaccines are largely being developed in the same manner as earlier vaccines, researchers have the benefit of past scientific experience to better ensure that a vaccine for this coronavirus will be safe. But he noted that the speed of the development of a COVID-19 vaccine — compressed into months rather than the usual years — and the politics that have accompanied it add to the reasons employers may be unwilling to make vaccination a requirement.
"One of the challenges we're going to be dealing with, obviously, especially now is that there is a shadow of politics over the vaccine,” Tan says. “As a result, there's some fear about whether the vaccine can be safe, whether it can be approved appropriately. Because of that shadow, I think it's going to be extremely difficult for an employer to make COVID-19 vaccination a condition of employment."
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Vaccine requirement more likely in health care, other high-risk jobs
The industry most likely to require COVID-19 vaccinations for workers is health care, where most employers already require workers to get a flu shot annually. In fact, interim guidance from the Centers for Disease Control and Prevention (CDC) on which groups might be among the first to have access to a coronavirus vaccine placed “healthcare personnel likely to be exposed to or treat people with COVID-19” at the top of the list.
But once enough doses of a vaccine have been produced for distribution to the broader public, some employers might start to consider a mandate.
"For example, essential workers in retail stores or in food production plants, such as a meat-packing plant, seem to be at high risk,” Reiss says. “Those employers could reasonably require [a COVID vaccination], because remember, if an employee doesn't vaccinate, it's not just a risk to them. It's a risk to other employees, and — if it's a customer-facing business — a risk to the customers. So, in high-risk places, I think it's reasonable."
Some companies may make inoculation voluntary but make it as easy as possible for workers to get the shot. For instance, Ford already has purchased twelve of the ultracold freezers required to store doses of Pfizer’s vaccine so it can provide the shot to employees who want it.
For those workers who might be told to get a vaccination, remember to raise any concerns you might have with your employer.
"Ask for reasonable accommodation and have a discussion with the employer as to whether there might be reasonable alternatives such as work from home or such as continued use” of personal protective equipment, Rosenlieb says.
If vaccination requirements do become more common, both workers and their employers will have to find ways to balance personal concerns with public safety.
"On one hand, [vaccine requirements] do limit the autonomy of workers that have reservations,” Reiss says. “On the other hand, they also protect workers by making the workplace safer from the disease. So, it's not just a mandate to limit your rights. A mandate can also protect your right to a safe work environment."
Editor’s note: This article originally was published on September 30, 2020. It has been updated with more recent information about the federal government and other employers requiring workers to either get vaccinated or be tested for COVID-19 regularly.