3 Questions About Employers Requiring COVID-19 Vaccines

January 7, 2021

COVID-19 vaccination has already begun in long-term care residents and healthcare workers across the country. Essential workers and high-risk individuals are up next. The expectation is that the general public will have access to both the Pfizer-BioNTech and Moderna vaccines as early as April 2021. However, according to Dr. Fauci, the nation’s leading infectious disease expert, 75% to 85% of Americans will need to get vaccinated to achieve herd immunity.

This news of vaccine deployment means that there’s light at the end of the tunnel, and a timid return to normality is seemingly right around the corner. But, as the American economy starts to ramp up re-opening, there’s a question weighing on the minds of employees and employers alike:

Can businesses require team members to get the COVID-19 vaccine?

The short answer: Yes. 

Employment in America is mostly “at will,” meaning employers can set working conditions and employment requirements. 

However, it’s a little more nuanced and complicated than you may think, and many employers are choosing not to require the vaccine even though it is within their rights to do so. 

1. Will vaccination be a requirement or a recommendation?

If an employer requires vaccination, they can be responsible for any adverse effects their team members may experience due to the vaccination. 

Employers are already facing potential claims against them should a team member contract COVID-19 while at work. Requiring vaccination may open the door to more worker’s compensation claims and legal action against the vaccine makers should a team member have an adverse reaction. 

The politicization of the vaccine adds to the unease employers may feel when deciding whether or not to issue a vaccine mandate, as does the issue of public trust surrounding the speed with which the Pharma companies developed the vaccine.  

For these reasons, many employers are likely to recommend--not require--that their employees receive the COVID-19 vaccination. 

For employers who wish to recommend vaccination strongly, there are ways to remove barriers to access, increase communication and motivate team members to take this preventative measure, similar to the methods employers use to encourage a yearly flu shot.

  • Arrange on-site vaccinations for employees, if possible
  • Display promotional posters with information about the vaccine around the workplace
  • Post content in workplace communications, such as newsletters, that talk about the benefits of vaccination
  • Share information with employees regarding where they can find clinics that administer the vaccine
  • Provide paid time off for team members to visit a doctor or clinic and receive their shot
  • Provide paid time off after receiving the second dose of the vaccination, as many have reported not feeling well the next day

2. Where will vaccination be more strictly enforced?

In some fields, due to the nature of the work, vaccination will be mandated by necessity. 

These include:

Healthcare

Healthcare workers and first responders are already required to get a flu shot and undergo other preventative health screenings. They are also at the top of the list to receive the COVID-19 vaccine.

Food Production

Because of concerns over outbreaks in food production, especially in the meat-packing industry, employers in those sectors may be more likely to issue a vaccine mandate. 

Restaurant Industry

Cooks, servers, and bartenders come into direct contact with consumables and the general public. For this reason, employers may consider vaccination an essential part of job safety.

Education

The expectation is that teachers in public schools will be required to vaccinate. Many schools already require up-to-date vaccinations for students and teachers alike; COVID-19 will become another vaccine on the required list.   Essential Workers

Those in essential positions, such as warehouse workers, seem to be at an elevated risk of contracting COVID-19. Because they work near each other and the public, vaccinating those team members is a priority to many.

3. Who may be exempt from the requirement?

In certain circumstances, employees may be exempt from employer requirements for the COVID-19 vaccine, or any vaccine for that matter, for reasons like:

Religious and Health Reasons

Team members who have sincerely held religious beliefs, practices, or observances that prevent them from taking the vaccine and those with medical reasons for forgoing vaccination are entitled to seek vaccine exemption. 

ADA and Title VII Guidance

This spring, the U.S. Equal Employment Opportunity Commission (EEOC) issued updates to the Americans with Disabilities Act (ADA) and Title VII of the Civil Rights Act of 1964 in response to the pandemic, stating that employers must provide reasonable accommodations for those who are unable to receive the vaccine. If an employer can give alternative working conditions that achieve the same safety level as vaccination, the employee cannot be terminated for failure to get vaccinated.

Reasonable accommodations and alternatives to vaccination include:

  • Working from home
  • Wearing a mask
  • Working separately from others

There’s a lot to weigh when businesses consider how to approach vaccination in the workplace. On the one hand, employer requirements for vaccination undermine team member autonomy. On the other, vaccination protects team members and the public alike, which is good for business and the community as a whole. Employers and employees will have to work together to strike a balance that is beneficial to all as we navigate this changing world.

Commentary from TeamSense should not be construed to be authoritative legal or public health guidance. Organizations should follow the latest guidance from relevant governmental and public health authorities and seek counsel from appropriate Legal, HR, and EHS professionals.