Can employers make COVID-19 vaccination mandatory for employees?
Yes, however there are some exceptions.
Experts tell us while employers can require employees to take COVID-19 safety precautions, to include being administered COVID-19 vaccination, they are also telling us that for those employees who are refusing the COVID-19 vaccination, this doesn’t necessarily mean they will be at risk for being terminated, however employees could be required to sign a waiver or agree to work under specific conditions, if available, to limit any risk they may pose to themselves or others.
“Employers generally have wide scope” to implement rules and safeguards for the workplace, said Dorit Reiss, a law professor specializing in vaccine policies at the University of California Hastings College of the Law. “It’s their business.”
The U.S. Equal Employment Opportunity Commission has permitted companies to mandate the flu and other vaccines, and are encouraging companies to require COVID-19 vaccines.
For those who are refusing to accept the COVID-19 vaccine, may request exemption if: 1) medical condition, 2) philosophical exemptions, or 3) freedom of religion.
While employers can require COVID-19 vaccination, there are reasons they may not want to.
Tracking compliance with mandatory vaccination would be an administrative burden, said Michelle S. Strowhiro, an employment adviser and lawyer at McDermott Will & Emery. Employers would also have to manage exemption requests, not to mention legal claims that would arise.
Because of this, many employers will likely encourage employees to receive COVID-19 vaccination without requiring it, Strowhiro said.
As COVID-19 vaccines become available, many employers will have a strong position for requiring employee vaccinations, as long as their vaccination policies have certain exceptions, are job-related and are consistent with business necessity.
“Employers may require vaccines before employees return to work if the failure to be vaccinated constitutes a direct threat to other employees in the workplace because the virus is rampant and easily transmitted in the workplace,” said Robin Samuel, an attorney with Baker McKenzie in Los Angeles.
Exceptions must be made for employees who cannot be vaccinated because of disabilities or due to sincerely held religious beliefs, he added. Employers do not have to accommodate secular or medical beliefs about vaccines.
“Some companies will have strong justifications to require their employees to be vaccinated,” according to Gary Pearce, chief risk architect for Aclaimant, a safety and risk management firm in Chicago, and Jody McLeod, an attorney with McLeod Legal Solutions PLLC in Charlevoix, Mich., in an e-mail. “The more likely it is that nonvaccinated employees put customers, fellow employees or the general public at risk, the more compelling the case will be for a vaccination mandate.”