Can Employers Mandate the COVID-19 Vaccine?

As the nation’s workers returned to pandemic-shuttered office buildings, many concerns about personal safety lingered about coronavirus exposure—namely, who is vaccinated and whether an employer can make you submit proof of vaccination. Years after the COVID-19 vaccine changed the American workplace, experts now recommend that individuals treat COVID-19 like other respiratory viruses, such as the flu and RSV.

An experienced employment lawyer can help you address the legal issues related to job-related COVID-19 requirements and provide specific legal guidance.

Understanding Vaccine Mandates

In June 2021, one class of 117 healthcare workers in Texas took the question of vaccine mandates to federal court when they sued Houston Methodist Hospital over its COVID-19 vaccine requirement.

A U.S. district judge dismissed the lawsuit, upholding the hospital’s employee vaccination policy and stating it broke no federal law. The U.S. Equal Employment Opportunity Commission (EEOC) issued similar guidance regarding federal law, noting that employers can legally require a COVID-19 vaccination status for employees to re-enter the worksite.

In January 2022, the U.S. Supreme Court blocked the Occupational Safety and Health Administration (OSHA) large employers from mandating mandatory vaccination or testing before returning to work. However, employers themselves can still set vaccine mandates.

Depending on where you live, state law may further restrict the ability of private or public sector employers to require a COVID-19 vaccination as a condition of employees returning to work.

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Navigating Employer Requirements

Employer vaccination requirements are no longer a primary concern for most employees, but it’s helpful to be aware of employer requirements. Although an employer may have vaccination requirement, employers must consider the issues relating to vaccine mandates before implementing a policy. It should thoughtfully consider employees and other constituents. When an employer has a vaccination requirement, there could be potential employment consequences for refusing a COVID-19 vaccination.

So what can workers who don’t want the shot do? An unvaccinated worker, says Emejuru Law founder Ikechukwu Emejuru, who practices employment law in Silver Spring, Maryland. “But that doesn’t mean the policy won’t be challenged in the future,” he says. “Although, after the federal court in Texas threw out the lawsuit, a challenge could prove difficult.”

An unvaccinated employee who refuses to participate in a vaccination program could be out of a job.

Legal Rights and Exemptions

There are exceptions to COVID-19 vaccine requirements, including exceptions under the Americans with Disabilities Act (ADA) and Title VII of the Civil Rights Act of 1964 for, for example, religious accommodation.

“Unless you have a qualifying disability and/or sincerely held religious belief or disability under the ADA, you can be required, as a condition of employment, to get a COVID-19 vaccine,” Emejuru says. “Otherwise, you could face termination.” The ADA, Title VII, and state land local laws are the primary laws that govern the legality of COVID-19 vaccination policies in the workplace.

A qualifying disability is a physical or mental impairment that substantially limits major life activity, Emejuru notes, like walking, talking, or even telework. As for sincerely held religious beliefs, employers must provide reasonable accommodations for employees who raise religious objections to the vaccine. The EEOC broadly defines “religion” in terms that go beyond being a church member or believer in God or gods and includes moral or ethical beliefs. 

It’s only under those two protections that an employee could potentially seek legal recourse. “You could have legal recourse if your employer punished you for refusing to take the vaccine despite your disability-related objection or sincerely held religious objections to the vaccine,” Emejuru says. 

If the need for an accommodation is not readily known, an employer may ask for additional information and still engage in the interactive process about why an accommodation is needed under the ADA. In the context of COVID-10 mandates, if an underlying medical condition is a disability, an employer must determine whether the disability poses a direct threat and whether a reasonable accommodation can lessen or eliminate any risks without causing an undue hardship. Concerning whether an employer can accommodate a religious exemption, they may utilize Title VII’s undue hardship standard.

Implications for Workplace Safety

The Centers for Disease Control and Prevention (CDC) recommends that all people use core prevention strategies to protect themselves (and others) from COVID-19. This includes taking steps in the workplace to ensure workplace safety. This may involve COVID-19 testing.

Anyone can choose a voluntary vaccination, but if you work for an employer who requires workplace vaccination, be prepared for that employer to require proof of workplace safety. 

“Employers may take COVID-19 testing to determine if employees entering the workplace have COVID-19, and an employer could also require proof of a COVID-19 vaccination, especially if you are going back into an office setting,” Emejuru says. 

A potential upside of the requirement could be an employer-sponsored incentive program. “Private employers are at liberty to do what they want to ensure a safe workplace, even if that means offering a bonus, gift cards, or even more vacation time to an employee,” Emejuru says. “Some private employers can even offer incentives to vaccinated employees, just like some states have been doing.”

While the vaccination mandates are legally sound and for public health to control the spread of COVID-19, Emejuru says the reality of what going back to work actually looks like might table the issue for a while.

“It is too hard to tell at this point what ‘going back to work’ really means,” he says. “Most office spaces are still dormant, and there appears to be a national trend of employees unwilling to go back full-time. So it’s possible that fully remote unvaccinated workers, or unwilling to get vaccinated, may not have to confront this issue right now.”

Find Experienced Legal Help

If you’d like more information on your employee rights regarding sick leave and other matters, see our overview of employment law or contact an experienced employment lawyer for legal advice.