Home / Commentary / Can employers require workers to take the COVID-19 vaccine? 6 questions answered

Can employers require workers to take the COVID-19 vaccine? 6 questions answered

The Equal Employment Opportunity Commission, the federal agency in charge of enforcing laws prohibiting discrimination in the workplace, said on Dec. 16 that employers can require employees to get vaccinated before entering the workplace.

Now that two COVID-19 vaccines have received emergency-use authorization in the U.S., some people are concerned they could be fired if they don’t want to take the vaccine. Here the legal scholar Ana Santos Rutschman, who teaches a course on vaccine law at Saint Louis University, discusses the decision and the rights of both employees and employers.

  1. Can employers require employees to get a vaccine?
    The general rule is “yes” – with some exceptions.
    Under U.S. law, private employers have the ability to define general working conditions, including the adoption of health and safety regulations within the workspace. Requiring employees to get vaccinated against diseases that could compromise health and safety in the workplace is viewed as part of that ability.
  2. Does the rule apply to COVID-19 vaccines?
    Earlier in the pandemic, there were some doubts about whether the general rule would apply to COVID-19 vaccines because the first vaccines that became available in the U.S. have not been fully approved by the Food and Drug Administration. They have received an emergency-use authorization, which is temporary permission to make the vaccines commercial because of the public-health emergency the U.S. is faced with. This is the first time emergency-use authorization has been granted to a new vaccine. For this reason, some legal scholars questioned whether existing laws apply to temporarily authorized vaccines.
    That question was answered when the Equal Employment Opportunity Commission issued guidelines that said employers have the right to impose a mandatory COVID-19 vaccination policy.
    From a legal perspective, this view is based on the fact that the law allows employers to impose requirements to make sure that employees don’t pose threats to the “health or safety of other individuals in the workplace.” The EEOC treated emergency-use vaccines as part of the various measures that employers are able to mandate in order to accomplish this goal.
    Therefore, the general rule applies and employers should be able to require that employees get vaccinated against COVID-19, within certain limits. These limits – including the exceptions below – are the same as the general exemptions applicable to any employer-mandated vaccination.
  3. Are there religious exemptions?
    Title VII of the Civil Rights Act established that if employees have a sincerely held religious belief incompatible with vaccination, their employers cannot require that they be vaccinated. The EEOC has usually interpreted the idea of “religious belief” very broadly. Vaccine refusal cannot, however, be the result of a personal or politically motivated belief.
    If employees qualify for a religious exemption, their employer must then try to reasonably accommodate them. For example, an employer might have employees switch from in-person work to remote work while COVID-19 still poses risks to public health.
    However, employers do not have to grant an accommodation if doing so would result in “undue hardship.” Typical cases of undue hardship include situations in which a proposed accommodation would threaten the health and safety of other employees or would prove to be too costly or otherwise burdensome. In case involving dispute over what constitutes an undue hardship, a court would typically be asked to reach a resolution by taking into account both the cost of the proposed accommodation and the difficulty of carrying it out.
  4. How about disability-related exemptions?
    The balance of rights between employees with a disability and their employers is similar to the one described above. Under the Americans with Disabilities Act, employees who have a disability and cannot safely receive a vaccine will qualify for an exemption requiring their employers to provide reasonable accommodations. But the act also establishes that employers do not have to provide an accommodation that would result in undue hardship.
    The technical question here concerns the Americans with Disabilities Act’s severe limitation on employers’ ability to require disabled employees to undergo medical examinations. In its Dec. 16 guidance, the EEOC clearly stated that COVID-19 vaccines do not fall in the “medical examination” category.
    Therefore, requiring employee vaccination does not violate federal disability law.
  5. What if an employer cannot provide an accommodation?
    If employees qualify for either a religious or disability-related exemption but their employer is unable to provide an accommodation because of undue hardship, then they be excluded from the workplace.
    Given the broad set of rights that the law gives employers in order to promote health and safety, it’s possible in some cases that an organization can go even further and terminate employment if a worker refuses vaccination. For example, if there were no reasonable accommodation that could be given a barista to allow her to continue make lattes at the coffee shop where she works, her employer might be able to terminate her employment.
    However, the EEOC’s guidelines explicitly state that the inability to reasonably accommodate employees does not automatically give an employer the right to fire them. In the example above, finding out whether the coffee shop could indeed terminate its unvaccinated barista would depend on a variety of considerations, including state law, union agreements and any other possibly applicable requirements at the federal level.

– Ana Santos Rutschman Saint Louis University

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