Editor’s note: On Jan. 13, 2022, the U.S. Supreme Court determined that the federal COVID-19 vaccine mandate for large private employers could not proceed, but the court allowed the mandate for workers at health care facilities that receive Medicare and Medicaid funds to take effect. For more information on those rulings, go to this article. The following article, published before those court decisions, offers context on COVID-19 vaccine mandates.
En español | As people start to return to office buildings after working remote for more than a year in some cases, more employers are taking steps to deter the spread of COVID-19 in their workplaces. One practice that has gained momentum is the requirement that workers either get vaccinated or submit to regular testing for COVID-19.
The increased use of vaccine mandates is a big change from early 2021, when most companies were merely encouraging their workers to get shots, with some businesses offering small stipends or paid time off as additional incentives to get the vaccine.
"Employers initially began with voluntary vaccine programs because they thought that there would be excitement and enthusiasm to be vaccinated,” says Diane Seltzer Torre, an employment law attorney with the Seltzer Law Firm. “The problem became that enthusiasm was not the case for certain regions, and businesses had to start looking at workers not being vaccinated with [the delta] variant coming into play."
Hoping both to make their workplaces safer and prevent the widespread temporary shutdowns that caused extensive unemployment last year, more employers are now making it a requirement for their employees to get vaccinated.
"Every organization, every company wants to ensure that they can create the workplace conditions for people to come to work and do their best work, and part of doing the best work is providing emotional and psychological safety,” says Margie Warrell, a workplace policy expert and author of Stop Playing Safe: How to Be Braver in Your Work, Leadership and Life. “Given the concerns around the spread of COVID, many organizations are making the judgment call that the upsides of mandating vaccination are going to offset the downsides."
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Here are the things workers should know now about vaccine mandates:
You legally can be required to either get vaccinated or be tested for COVID-19 frequently.
When the vaccines first became available to the public earlier this year, many legal experts said that employers could issue vaccine mandates if they chose to do so, as long as they provided exemptions for workers who either had medical conditions or sincerely held religious beliefs that prevented them from being vaccinated. And both the Centers for Disease Control and Prevention (CDC) and the Equal Employment Opportunity Commission (EEOC) said that federal laws do not prohibit employers from requiring COVID-19 vaccinations. The U.S. Department of Justice also recently stated that employers can require their workers to get vaccinated.
"An employer can require a vaccine for an employee to keep their job because it has been determined as a matter of public policy and law, that COVID-19 is a major public health concern, and the spread of it can be minimized through the use of vaccinations,” says Jay Rosenlieb, an employment law attorney at the Klein DeNatale Goldner law group in California.
Perhaps the tipping point for employer vaccine mandates occurred in July 2021, when President Biden announced that federal employees and contractors would either have to be vaccinated or comply with an ongoing process of being tested for COVID-19, wearing a mask and following physical distancing policies. With more than 2 million employees across the nation (28 percent of whom are age 55 and older), the federal government is the country's largest employer.
On September 9, Biden announced that the administration was making workplace vaccination requirements even more rigorous. Federal executive branch employees and all federal contractors will no longer have the option to submit to regular COVID testing instead of being vaccinated. And workers at health care facilities that receive federal funding from Medicare or Medicaid also will now be required to get vaccinated.
On November 4, the White House also released its vaccination requirements for private employers. Workers at private businesses that employ at least 100 people will be required to either be vaccinated or undergo weekly tests for coronavirus infection, under the new rule from the U.S. Labor Department’s Occupational Health and Safety Administration (OSHA). All workers at these companies will be eligible for paid time off to get vaccinated. This requirement has been suspended, pending the outcome of legal proceedings. The U.S. Supreme Court will hear arguments about the mandate on January 7. If the requirement is deemed to be legal, employees would be required to be vaccinated or submit weekly tests starting February 9.
More than 80 million people nationwide ultimately could be affected by this new workplace vaccination requirement. Private companies that don’t comply with this new federal rule could face steep fines.
It should be pointed out that many state and local governments currently are seeking to enact policies that in various ways could affect what employers in their jurisdiction are permitted to do with vaccine mandates. For example, in May, Montana passed a law that bars employers from issuing vaccine mandates or even asking a worker whether he or she has received the shots. It's unclear whether these new laws would survive court challenges, which so far have upheld vaccine mandates as legal. And while OSHA has suspended its guidelines for private employers, the White House did still assert that its requirements would preempt all state and local laws about COVID-19 vaccines should its vaccine-or-testing mandate withstand court challenges
You could get fired if you don't comply with the vaccination/testing policy.
The choice of whether to get vaccinated for COVID-19 can be a deeply personal decision, and employers take that into consideration when they set the policy for their workplace. “Every organization knows there will be people who don't want to get vaccinated or — even if they agree with vaccination — don't like it being mandated,” Warrell says.
Even so, once a company establishes a vaccination policy, workers generally either have to comply or risk losing their jobs, unless they qualify for a medical or religious exemption. In one high-profile example, CNN recently fired three unvaccinated employees who allegedly were violating the company's vaccination policy by coming into the office.
While the law on vaccinations and unemployment benefits is still taking shape, legal experts say if you lost your job because you were unwilling to comply with your employer's policy, you likely wouldn't be able to collect unemployment benefits.
"That's an open issue, and it's going to be determined on a state-by-state basis,” Rosenlieb says. “But the general feeling is that if [being unvaccinated] is a matter of personal decision as opposed to an actual medical condition that's preventing you from getting the shots, then you run a very serious risk of being without a job and without unemployment benefits."
Adds Seltzer Torre: “The employee, by not being vaccinated, would be violating a company policy, and could absolutely be terminated for that reason and that would be considered the kind of misconduct that would disqualify the person from unemployment benefits."
Several states recently have taken action to clarify whether workers who lose their jobs because they refuse to get vaccinated are eligible for unemployment benefits. Arkansas, Florida, Iowa, Kansas, and Tennessee have all passed laws that allow workers who are fired for refusing COVID-19 vaccine mandates to collect unemployment benefits.
Kenneth Terrell covers employment, age discrimination, work and jobs, careers, and the federal government for AARP. He previously worked for the Education Writers Association and U.S. News & World Report, where he reported on government and politics, business, education, science and technology, and lifestyle news.