In recent weeks it has become clear that an employer can legally require their staff to get a COVID-19 vaccine before returning to work, with a few exceptions. Whether or not they should, however, is a little less straightforward.
In mid-December, the U.S. Equal Employment Opportunity Commission (EEOC) published its findings that, when it comes to the COVID-19 vaccine, “the EEO laws do not interfere with or prevent employers from following CDC or other federal, state, and local public health authorities’ guidelines and suggestions.”
In fact, the EEOC guidance confirms that a mandatory vaccine policy would fall under the Occupational Safety and Health Act (OSHA) of 1970, which establishes a worker’s right to a workplace free from potential hazards. In other words, employers are legally required to keep their staff safe from all known health and safety risks in the workplace, and that includes exposure to COVID-19 by their colleagues.
Even though employers have the go-ahead to mandate company-wide coronavirus vaccinations, and the ability to legally terminate an employee for refusing such a vaccine, experts believe such mandates might prove less effective than voluntary programs.
Why Mandates Could Backfire
According to a recent survey conducted by ZipRecruiter, 53% of respondents want their employers to require that all employees get a COVID-19 vaccine prior to returning to the workplace. When the question was rephrased using the term “mandatory vaccination policy,” and when respondents were told that labor unions have historically opposed vaccination mandates, only 45% supported the policy.
“Employers should be a little hesitant before they adopt a mandatory policy, because these mandatory vaccination policies can produce a huge backlash and end up reducing the vaccination rate,” explains Julia Pollak, a labor economist for ZipRecruiter. “There are all kinds of psychological things that happen when there’s a mandate . . . the minute you mandate something you get people who oppose the mandate.”
Even without a mandate, the survey’s findings suggest that the majority of American workers will get vaccinated voluntarily. Of the nearly 2,700 respondents, 56% said they are open to getting a COVID-19 vaccine as soon as it’s available, and among the remaining 44%, more than a third said they would be open to getting the vaccine later in 2021.
“There’s still a large chunk of people who are not open to taking it at all, and there are even about 10% of respondents who are neither prepared to take the vaccine nor participate in a weekly testing program,” says Pollak. “That will be a particular challenge for employers.”
Legally Permissible Exemptions
Though employers can require their staff to get vaccinated before returning to the office, there are some extenuating circumstances that would make such a policy inapplicable.
For example, those with certain allergies and other medical conditions that would put them in danger of an adverse reaction to the vaccine could not be legally required to take it. This exemption is a little complicated, however, because employers are not permitted to ask about such conditions under the Americans with Disabilities Act (ADA).
“If it causes the employees to disclose a potential disability, it’s a violation of the ADA,” explains Andrew Zelman, a partner and labor and employment attorney at the Berger Singerman law firm in Miami.
Zelman explains that this potential hurdle is only applicable to companies that provide vaccinations to their staff directly at the office, which he expects many will do. Those who are vaccinated outside of the office may be exempted by simply providing a note from a doctor that says they cannot get the vaccine for medical reasons, without specifying what those reasons are.
Employees may also be exempt from a COVID-19 vaccine mandate if they work remotely and have absolutely no physical contact with the workplace or their colleagues.
“The last bucket is the sincerely held religious belief exemption—like a Christian Scientist or Jehovah’s Witness—who doesn’t believe in vaccines,” says Zelman, adding that Title VII of the Civil Rights Act prohibits discrimination on the basis of religion. “It is an objective test, meaning that if [an employer] believes Christian Science is a cult and they don’t recognize it, that’s not good enough. You would still have to make an exemption, and there would have to be reasonable accommodation for that employee.”
In such circumstances, the employee may be required to work remotely, if possible, or may have to undergo regular screening measures and maintain COVID-19 safety protocols such as wearing a mask and staying six feet away from their colleagues.
Non-Legally Permissible Exemptions
Those who refuse to get a vaccine might offer a number of reasons why they feel they should be exempt, but many will be superseded by the legal requirement for employers to provide a safe working environment under OSHA requirements, says Zelman.
For example, some might argue that their employment contract says nothing about a coronavirus vaccine, and thus they cannot be required to get one.
“Every employment contract, or every at-will employment offer, has a clause in it or within the roles and responsibilities that the employee is required to follow the policies of the employer,” explains Zelman. “So with a company handbook, policies are adapted from time to time, which is not considered a contract, but are still considered guidelines the employee has to follow, so they have to be upheld.”
Such a policy, according to Zelman, would have to be applied broadly and cannot target any individual employee.
“For most employers, you have to make uniform policy on this one way or the other—we’re going to mandate a vaccine or not,” he says. “It could be a class of employees—like warehouse workers or those who interact with customers—as long as there’s a clear dividing line so it’s not discriminatory, and everyone is treated the same way within this class of employees.”
The other exemption that is unlikely to hold up in court is the widespread hesitation to participate in public health activities as a result of America’s shameful past of medical racism.
For example, during the Tuskegee Study, a 40-year-long examination of rural Black men who had syphilis, subjects were not told of their diagnosis, and were actively barred from receiving treatment.
“I’m an African American, and I can tell you I grew up hearing the stories about the horrible Tuskegee thing,” says Johnny C. Taylor Jr., CEO of the Society for Human Resource Management. “This is something you need to overcome, specifically with older African Americans, who are often most vulnerable.”
According to the ZipRecruiter study, only 46% of Black respondents were open to getting vaccinated immediately, compared with 61% of white respondents.
Taylor adds that America’s treatment of Black Americans throughout history, specifically in regards to medical experimentation, will prevent many from getting the coronavirus vaccine when it becomes available. Such rationale, however, is unlikely to hold up in court against an employer-mandated vaccination program, given the amount of harm that has been caused by the pandemic.
“A person saying, ‘I’m not going to take the flu vaccine because of America’s horrible history on race and health care’ got it, no problem,” says Taylor. “In this environment, it’s different. I’m not so sure, given the death and devastation of COVID, that courts would align with that.”
Given the widespread hesitation toward the COVID-19 vaccine across a variety of communities, Taylor strongly encourages providing information and resources that will encourage staff to get vaccinated before imposing a mandate or threatening termination.
“What we know is the American worker doesn’t want to be made to do anything. There’s a natural resistance to anything that is preceded with the big capital M word, mandate,” he says. “That’s why we feel very confident that the better route is to get people to voluntarily participate in this—that should be the initial approach.”