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Can Employers Mandate COVID-19 Vaccines?

In recent months, COVID-19 vaccines have quickly become one of the most polarizing and highly politicized topics in the United States. Despite more than 170 million Americans being fully vaccinated, a large percentage of the population is still skeptical of this inoculation. But after the Pfizer vaccine received full approval from the U.S. Food and Drug Administration (FDA) in late August, it begs the question: is it legally acceptable for employers to require COVID-19 vaccinations for all employees?

Broadleaf’s Associate Counsel, Earl Cantwell, has studied this controversial topic to examine potential legal implications for employers and employees. Here are his thoughts on how the implementation of vaccine mandates could impact businesses and their workers in the United States.

Is it legal for an employer to mandate vaccines for their employees?

As of the date of this publication, employers in all states except for Montana may lawfully require employees to be vaccinated against COVID-19 as a term and condition of employment. Employers, however, must be prepared to consider and grant reasonable accommodations to employees who have been unable to become vaccinated due to a disability or sincerely held religious belief.

If deciding not to implement a vaccine mandate, what are employers doing to encourage employee vaccinations?

Employers use other less direct methods to increase the rate of COVID-19 vaccinations in their workforce. Some employers have had success providing cash or other incentives. Employers also can remove barriers to vaccination by providing paid time off for employees to get the vaccination or arrange for a third-party vaccination service to provide vaccines at the workplace. Data shows, however, that the population of individuals in the United States that remain unvaccinated will not likely respond to these half-step measures.

What should employers do if their employees refuse to receive a COVID-19 vaccine?

If an employer has implemented a mandatory vaccine policy, and employees refuse to become vaccinated against COVID-19, the unvaccinated employees should be terminated, unless the employee has demonstrated entitlement to a disability or religious accommodation. If the employer only encourages—but does not require—COVID-19 vaccinations, the employer should consider adopting a mandatory vaccine policy.

Have there been any employer-employee lawsuits surrounding the COVID-19 vaccine?

Yes. Of these lawsuits, two notable federal cases challenged the legality of an employer’s mandatory vaccination policy. In both cases, the court rejected the lawsuit. And in one case involving Houston Methodist Hospital, the judge wrote a scathing opinion, stating “The plaintiffs can freely accept or refuse the vaccine . . . [but if they refuse] they will simply need to work somewhere else.” These rulings, however, do not mean that mandatory vaccine policies are not without legal risk. Employers still need to pay careful attention to how the policy is communicated during recruitment while limiting access to employees’ vaccine status information and managing disability and religious accommodations.

Summary

In the current business climate, organizations face a difficult decision: do they keep their employees safe with a vaccine mandate while putting their talent attraction and retention success at risk? Or do they refrain from vaccine requirements to appease workers—both current and prospective—that are unwilling to receive the inoculation? As employers continue to deliberate whether to mandate vaccines for their employees, it is evident that more tough choices are forthcoming in the weeks ahead.

Looking for more legal insight? Check out our Broadleaf blog on how the withdrawal of the independent contractor rule will affect businesses.

For more workforce implications surrounding the pandemic, check out the COVID-19 section of our blog.