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: Could they eventually be required to get a COVID-19 vaccination if they want to keep their jobs?
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. And experts say that employers are more likely to simply encourage their workers to get immunized rather that issue a company-wide mandate.
"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."
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
Those restrictions generally are tied to the federal Americans with Disabilities Act (ADA) and Title VII of the Civil Rights Act of 1964, according to guidance the U.S. Equal Employment Opportunity Commission (EEOC) issued in March regarding workers’ rights during the pandemic, including vaccinations. 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.
"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, many might choose to simply recommend their workers get immunized rather than make vaccination a condition of employment.
For example, employers also need to weigh any liability issues a vaccination requirement might raise.
"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."
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."
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."