Can employers require employees to take the COVID vaccine?

As a business owner, you’re likely worried about the safety of your employees and customers during a global pandemic. Given the severity of COVID-19 and the still-rising death toll, there seems to be a moral imperative that employers step in to help curb this public health crisis. While mandating vaccination is one way to reduce the risk of your employees contracting and spreading COVID-19, it is understandable to be cautious of opening yourself up to legal challenges. This article will help you understand the existing law around employers requiring employees to take the COVID-19 vaccination.

[Association for Psychological Sciences]

At-Will Employment

At-will employment allows employers to set health and safety work conditions, so in most cases, employers can require employees to take the COVID vaccine.

At-will employment is a tenet of US labor law that allows employers to fire employees (as well as for employees to terminate employment) at any time and for almost any reason. That means that generally, someone could be fired for listening to country music, being a Knicks fan, or — you guessed it — refusing to get vaccinated.

How is it possible, then, that wrongful termination suits happen all the time? Well, there are reasons to terminate employees that are illegal which, in some cases, also apply to mandatory vaccinations. We will discuss when requiring vaccination can become illegal now.

Exceptions

[Johns, Flaherty, and Collins SC]

The scope of what employers can do is tempered by the federal Americans with Disabilities Act (ADA) and Title VII of the Civil Rights Act of 1964. US federal law prohibits employment discrimination against members of 7 protected classes: race, color, religion, sex, national origin, age, and disability. There may be even more protected classes for businesses to be aware of consistent with individual state law.

Employers cannot legally fire an employee for reasons related to their identity as a member of one or more protected classes. This is critical when considering mandatory vaccination as some employees may have objections to taking the vaccine due to medical disability or religious grounds. To require that such employees take the vaccine is illegal.

Employer Administration of Vaccination and Disability-Related Inquiries

The issue of mandatory vaccinations may raise questions about the applicability of various equal employment opportunity (EEO) laws, especially the ADA. In particular, if the employer rather than a third party administers the vaccination, medical pre-screening questions which may elicit information about a disability must be “job-related and consistent with business necessity.” To meet this standard, an employer would need to have “a reasonable belief, based on objective evidence,” that an employee who refuses to answer the questions and, therefore, is not vaccinated, will pose a direct threat to the health or safety of themself or others.

Alternatively, simply requesting proof of receipt of a COVID-19 vaccination administered through a third-party is not likely to elicit information about a disability, and the inquiry does not need to meet the same standard as a disability-related inquiry.

Ultimately, if you are an employer in the US, you can (and should!) mandate vaccination but should stay aware of potentially infringing upon someone’s rights given by their status in a protected class. Your business, including your employment practices, should be a force for good — both in terms of public health and non-discrimination.

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