Now that multiple COVID-19 vaccines have been widely distributed in the United States for several months, many Americans are wondering whether vaccination will be required to return to offices.
Last Friday, the U.S. Equal Employment Opportunity Commission released new guidance stating that companies could mandate vaccination as long as they comply with federal anti-discrimination laws.
The missive follows similar guidelines the agency gave in December, but the EEOC additionally clarified that companies can offer COVID-19 vaccine educational materials and incentives for employees to be vaccinated, as long as the incentives are “not coercive.”
“A very large incentive could make employees feel pressured to disclose protected medical information,” the EEOC said in a press release.
So can your employer make it an actual job requirement to get a COVID-19 vaccine? It depends on a few factors.
Employers have to consider employees’ rights first.
Florida-based employment attorney Donna Ballman said that if you’re an at-will employee, “employers can say, yes, provide proof that you’ve been vaccinated or you’re fired, or you cannot come in or you have to work remotely.” Ballman noted that for unionized workforces, collective bargaining agreements would need to be consulted before a mandate is enforced.
Lawrence Gostin, a global health law professor at Georgetown University, said he could foresee a number of employers requiring staff to get a COVID-19 vaccine. He pointed to hospitals and health care facilities, which already require influenza vaccines as a condition of employment.
“These have been thought to be lawful because the employer is not breaking any law. That is, they are doing it for the health and safety of their employers and their customers, and they have a duty to keep their employees and customers safe. And they are not discriminating on the basis of gender, race and disability,“ he said.
“It's going to be more complicated than just signing a memo like, 'OK, everybody has to get the vaccine.'”
But employees have rights, too.
“Once you mandate, you very possibly have to pay people for their time to go get it,” Ballman said. “It’s going to be more complicated than just signing a memo like, ‘OK, everybody has to get the vaccine.’” Ballman said that if an employee is fired for not physically being able to get the vaccine on their own timeline, that could also be considered disability discrimination.
In its 2009 guidance on pandemic preparedness, the EEOC, which enforces federal anti-discrimination laws, said that people with disabilities covered under the Americans With Disabilities Act and people whose religious beliefs are protected under Title VII of the Civil Rights Act may be entitled to an exemption from a mandatory flu vaccine.
The EEOC said in December that although requiring proof of vaccination isn’t an ADA violation, follow-up questions employers may ask of employees ― such as asking why someone did not get a vaccination ― may be in violation if those questions elicit information about a disability. Such follow-up questions are subject to the ADA standard that they be “job-related and consistent with business necessity,” the agency said.
If an employee cannot be vaccinated due to their disability and that poses “a direct threat that cannot be reduced to an acceptable level,” the employer can bar the person from the workplace but can’t automatically fire them, the EEOC said.
What about other federal agencies’ guidance? Under the Occupational Safety and Health Administration’s general duty clause, employers must provide a workplace “free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.”
So far, OSHA has not said what its employer policies will be on COVID-19 vaccine mandates. Gostin said he does not think OSHA will require employers to mandate vaccines, “but I could foresee that they would advise them to make COVID vaccines accessible to employees in the workplace.“
The Centers for Disease Control and Prevention declined to comment on its employer recommendations regarding a COVID-19 vaccine.
Instead of a mandate, employers could also make it harder to refuse a COVID-19 vaccine.
Mandates are not the only option employers are starting to plan for.
“Most clients right now are leaning toward encouraging rather than requiring the vaccine, just because there are still so many unanswered questions,” said Sharon Perley Masling, a director of workplace culture consulting at the Morgan Lewis law firm.
Masling said these unanswered questions include whether a COVID-19 vaccine being approved under an emergency use authorization would be treated the same as if it were fully approved by the Food and Drug Administration.
“I think it is wise for employers to start planning, but those plans are going to be revised as we get more information,” Masling said.
Whether or not companies decide to require COVID-19 vaccination, their recommendations are expected to hold a lot of sway over employees’ health decisions. Gostin was the co-author of a June survey that asked 13,426 people in 19 countries about their acceptance of a COVID-19 vaccine. About 61% said they would likely get a COVID-19 vaccine if their employer recommended it.
In lieu of an employer mandate, small nudges like employees’ access to a vaccine can make a difference. Research has found that the more an employee walks by a worksite vaccine clinic, for example, the more likely they are to get vaccinated.
Gostin said making a COVID-19 vaccination the norm at work could be an effective way to increase the number of employees who are vaccinated. Under this scenario, employers would offer it to all of their workers, and if an employee refused to get one, they would need to sign a form or get a doctor’s certificate stating why. Gostin said research has shown that those extra hurdles increase employee compliance on vaccinations.
“That little nudge, making it just a little bit harder to say no, means more people say yes,” Gostin said. “You can accomplish the same objective without a mandate.”
This article has been updated to include the latest EEOC guidance.
Experts are still learning about COVID-19. The information in this story is what was known or available as of publication, but guidance can change as scientists discover more about the virus. Please check the Centers for Disease Control and Prevention for the most updated recommendations.