As COVID-19 vaccine distribution ramps up, small business owners – especially those operating in a high-risk environment – may be wondering what their rights are for requiring employees to get the vaccine. To keep your workplace safe and compliant, it is important to understand what the COVID-19 vaccine is and what your legal rights are for mandating it when it is widely available.
What is the COVID-19 vaccine?
There are currently two COVID-19 vaccines authorized for emergency use in the United States: the Pfizer-BioNTech COVID-19 vaccine and the Moderna COVID-19 vaccine.
As the coronavirus vaccine becomes readily available to the wider population in the coming months, employers must decide whether to encourage their employees to get the vaccine or to outright require it.
COVID-19 vaccine and employers' rights
When the COVID-19 vaccine is widely available, private employers can legally require at-will employees to get vaccinated as a condition of employment. According to the Equal Employment Opportunity Commission (EEOC), employers may even require employees to show proof of vaccination, but employers may want to warn employees not to include any medical information in that proof.
Requiring the vaccine
Although it is legal to require employees to get the vaccine, there are a few labor and employment laws you need to consider. For example, Title VII of the Civil Rights Act of 1964 (Title VII) makes it illegal for an employer to discriminate against an applicant or employee based on their race, color, religion, sex and national origin. Consequently, employers that require coronavirus vaccination as a condition of employment must provide reasonable accommodations for employees with particular religious beliefs, practices or observances that prevent them from getting the vaccine.
Editor's note: Seeking other resources to navigate your small business through the coronavirus pandemic? Visit our COVID-19 business resources hub.
According to Andrew Zelman, partner and employment law expert at Berger Singerman, protections are also afforded for employees with certain disabilities or medical conditions that would prohibit them from participating in an otherwise mandatory vaccination program.
"An employer met with an objection to a vaccine by an employee claiming a medical condition may not inquire further into the details of the condition other than potentially requiring a notice from a medical professional, or risk violating the Americans with Disabilities Act (ADA)," Zelman told business.com.
Additionally, unless the government passes a law that gives civil immunity to employers implementing mandatory vaccinations, employers are susceptible to the risks of litigation and employee backlash.
Administering the vaccine
Employers must be wary of violating the ADA if they choose to host the distribution of the vaccine themselves, as the ADA has stipulations regarding disability-related inquiries.
"If the employer administers the vaccine, similar to how many employers offer an annual flu vaccine through company insurance, the prescreening questions to the employee must be 'job-related and consistent with business necessity,'" Zelman said.
COVID-19 vaccine and employees' rights
Some employees may be hesitant to get the COVID-19 vaccine and prefer to work from home instead. So, if an employer decides to make COVID-19 vaccination a requirement of employment, do employees have the right to continue working remotely instead?
It depends. There are a few scenarios that afford employees the ability to forgo mandatory vaccination and work remotely instead, but these situations are based largely on the employee's underlying justification for wanting to work remotely.
Employee exemptions
If an employee falls under one of the aforementioned exemptions, working from home may be considered a reasonable accommodation and could, therefore, be allowed. Employers may be able to request supporting documentation for why the employee needs the accommodation (e.g., religious exemption, medical exemption), but employers should avoid requesting any protected information (e.g., details about a disability).
If the employer chooses to rely solely on employee vaccination and fails to implement other health and safety measures recommended by the Centers for Disease Control and Prevention to prevent the spread of the coronavirus in the workplace, telecommuting may be considered justifiable. Employers must take all of the proper precautions in maintaining a safe and healthy work environment.
"If the reason for the [telecommuting] request and the feeling of not being comfortable in the workplace is based upon a general belief that COVID-19 is omnipresent without any subjective issues with the employer's workplace, then the employer has discretion to afford continued teleworking, provided the decision is made, so as not to discriminate against other similarly situated employees," Zelman said.
Employee vaccination information
Employees may believe it is their legal right to know if their colleagues have contracted the virus or received the vaccine, but this is false. In fact, Jay Kelley, managing partner at Elk & Elk Co., said employees "have a right to not have their personal medical information disclosed to others.
"Notably, however, if an employer does make this notification, the individual cannot be identified, due to Health Insurance Portability and Accountability Act (HIPAA) and ADA privacy protections," Kelley said. "This would apply to information regarding who has or has not received the vaccine or has [presumed] immunity from having had the virus in the past."
Who should require mandatory vaccinations?
Just because you can make COVID-19 vaccination mandatory in the workplace doesn't mean you should. Requiring vaccination can have a negative impact on company morale, it may be administratively difficult to implement company-wide and it may have legal ramifications.
Most employers are better off educating and encouraging employees to get vaccinated, rather than making it mandatory. Employers should also be implementing other health and safety measures, like social distancing, mask wearing and proper sanitization.
That said, there are a few industries that could benefit from requiring employees to get vaccinated.
"Elderly or medically immunocompromised clients would be dramatically benefited by mandatory vaccinations," Kelley said. "Additionally, businesses with employees who are required to engage in a significant amount of travel could benefit from having their traveling staff vaccinated."
What to consider when deciding whether to require mandatory COVID-19 vaccination
There are several things to consider when deciding whether to require employees to get the COVID-19 vaccine when it is available to them. Every business is unique, and the laws are constantly evolving – so be sure to evaluate your situation thoroughly and follow any current guidelines, laws or regulations.
When deciding on mandatory vaccinations, ask yourself the following questions:
- What are the benefits of requiring vaccination? Having a workforce that's better protected against COVID-19 is ideal for improving productivity and maintaining compliance with Occupational Safety and Health Administration.
- What are the limitations or implications of requiring vaccination? Implementing a company-wide vaccination requirement can cause several problems; it is a huge undertaking that can cause administrative and compliance issues.
- Is requiring vaccination necessary? Industries and organizations at high risk for coronavirus exposure or those that work with high-risk individuals may benefit from mandatory vaccination policies. Assess whether vaccination is necessary for your business or if you can seek an alternative. For example, Zelman said, many employers may benefit from following the flu-shot model instead.
In other words, you might "encourage participation through education (information on the importance of receiving the inoculation), convenience (by hosting the administering of the shots and/or reimbursing employees for their visit to a test site) and cost elimination (by sponsoring the testing for the employee)," Zelman said.