Can My Employer Require Me to Get the COVID-19 Vaccine?
The short answer is that most employers probably can require that employees get vaccinated, provided that they are adhering to anti-discrimination, laws protecting employees represented by unions, and labor safety laws. The long answer is, therefore, more complicated.
As a general rule, employers may ask for proof of vaccination. But employers should not ask for further information in the form of follow-up questions if, for example, the employee has chosen not to be vaccinated.
At-Will Employees
Generally, employees are employed “at-will,” meaning that the employer can discharge an employee for any reason (with some exceptions discussed below) and at any time. Since the employer can discharge an employee for any reason, it could do so for refusal to comply with a legal request such as refusal to get vaccinated. Employees of private entities who are not employed “at will” generally have some sort of employment contract that protects their employment status. For instance, higher-level employees or those with special training may have employment contracts. In those cases, the contract may provide for some sort of health-related obligations. Even if it did, however, it would probably say little more than a provision obligating the employee to comply with reasonable directives consistent with his employment obligations. Most employment contracts would not say anything about required vaccinations, however. In such cases, however, the employer could probably require the employee to get vaccinated as part of its general authority to govern the workplace.
Contract Employees
Moreover, contractual language will not usually trump a contrary requirement imposed by law.
Statutes or other legally enforceable provisions often protect the employment status of government employees. Also, unionized employees - whether employed by private or governmental entities - have collective bargaining agreements that may govern vaccination programs. Moreover, laws that govern the rights of unionized employees provide, as a general rule, that any change in the conditions of employment must be negotiated with the union. So, before an employer can require unionized employees who are subject to a collective bargaining agreements to get vaccinated, the employer should contact the union in an effort to seek agreement on the operation of the vaccination program.
Anti-discrimination Laws
Even for those who are employed at will, one of the exceptions to the “at-will” doctrine is that an employer cannot fire an employee for reasons that constitute unlawful discrimination. So, for instance, if an employee has a medical or religious reason for refusing vaccination, termination for failing to vaccinate could be grounds for a successful employment discrimination claim by the employee. That said, employers may impose health conditions that are reasonably related to employees’ ability to do the work in question. Accordingly, whether a particular employer may require vaccinations or merely offer them will turn on whether a court would determine that minimizing the risk of covid disease is sufficiently compelling in any particular case such that requiring vaccination is reasonably related to the ability to do the work in question. For instance, in some situations, unvaccinated employees could endanger other employees or customers.
In determining whether that is so in any particular situation, an employer should carefully consider factors such as the duration of the risk; the nature and severity of the potential harm; the likelihood that the potential harm will occur; and the imminence of the potential harm. For example, it seems like a stretch to argue that vaccination for an office employee who has been working at home successfully and could continue to do so is nonetheless reasonably related to the employee’s ability to do the job. On the other hand, the argument seems more compelling for wait staff in a restaurant who must encounter customers and other employees.
Even if an employer concludes that unvaccinated employees do pose a threat to customers or co-workers, the employer should then determine whether a reasonable accommodation (e.g., changing the distance between work stations or mask wearing) can mitigate the threat sufficiently, before obligating employees to be vaccinated.
Employers should also take care to follow any safety guidelines set forth by the Occupational Safety and Health Administration (OSHA) related to requiring vaccines.
Incentive Programs
Rather than terminating employment for failing to get the vaccine, many employers are considering offering incentives to employees to get the vaccine – i.e. bonus payments, paid time off to obtain the vaccine and recover from any side effects, etc. Employers offering incentives still have to be cognizant of disability and religious accommodations. The employer may have to provide the incentive to employees who properly claim exemptions on such bases, unless providing the incentive would be an “undue hardship” under the anti-discrimination laws.
Under the Americans with Disabilities Act, employee heath or wellness programs that involve disability-related inquiries must be voluntary. Moreover, employers should not ask disability-related questions themselves, though the medical clinic or personnel who provide vaccinations may ask reasonable questions related to health and safety such as allergy history. Also, while it is not clear whether any particular vaccine incentive program would be a health or wellness program, employers would be wise to heed the rules related to employee health or wellness programs in establishing and operating any vaccine incentive program, whether incentive-based or required. Employers should carefully structure and document such programs to ensure that the employer is not exposing itself to any discrimination and/or safety land mines.
If you have particular questions or concerns and would like to consult with one of our attorneys who specialize in these areas, please contact us at (312) 578-8100.