Can Employers Require Employees To Get Vaccinated?

Employers can require workplace vaccination policies and terminate at-will workers for not getting a vaccination. Employers have the right to impose vaccine mandates with disability accommodations, health exemptions, and legal exemptions for serious religious beliefs, unless it imposes an undue hardship or relates to health and safety. ADA compliance and Title VII protections prohibit wrongful termination based on disability discrimination or collective bargaining agreements.

Employers should talk to a lawyer to ensure company policies do not violate employee rights laws for protected classes.

Employers’ Legal Questions About Vaccines During the COVID-19 Pandemic

Business attorneys’ phone lines rang nonstop during the COVID-19 pandemic, with employers needing to hit a constantly moving target when it came to legal compliance. Early in 2021, though, the questions started shifting from “How do we avoid spreading coronavirus?” to “How do we encourage employees to get the COVID-19 vaccine?”

“I got calls from all different industries, with employers trying to tread carefully,” says Leigh Dones Moss, a business law attorney at Moss Law in Bloomfield Hills. For one, they wanted to stay within the bounds of the law. For another, they didn’t want to upset people or be forced to make terminations. And above all, they wanted to stay safe.

“Some employers wanted to mandate vaccinations. Some employees wanted a mandate from their employers. Others wanted to mandate it for their customers or services,” says Dones Moss. “They’d say: ‘Are we allowed to mandate it? I want to require it, but I don’t want to require it, you know.’ So, I was advising businesses on how to tread carefully and still obtain the result, which was a vaccinated workforce.”

Here is what Dones Moss told them.

Use the Carrot, Not the Stick, To Persuade Employees To Get Vaccinated

One of her clients had an office with 11 employees. Ten of them were vaccinated. One was not, and the employer had reason to believe they were an anti-vaxxer. So what did they do?

“One of the suggestions that I made to him was that he provide an incentive for people to be vaccinated,” she says.

“For those people who had already been vaccinated, he was going to give them a paid day off if they showed him the vaccination cards. And for anyone who was not yet vaccinated, he was going to offer them paid time off to go get vaccinated.”

Dealing With Unvaccinated Contractors

Dones Moss had another client in the therapy field who dealt with roughly 10 independent contractors.

“That was a tricky one,” she says. “On the one hand, if you were contracting with parties, you could mandate anything you wanted. You could say, ‘I only want to deal with vendors who have a vaccine policy. I don’t want someone to come into my building with COVID-19 and get my employees sick.’ On the other hand, in that office setting, you had to be very careful that you didn’t turn your independent contractors into employees by making certain employment demands.”

In that case, Dones Moss advised having a group conversation, the content of which could go something like this:

“What do we think makes sense for our joint, shared business space, and implementing healthcare regulations for all employees? Oh, all of you are vaccinated except for one person. Hmm, how can we address the situation? How about you stick with teletherapy, and the rest of us do in-person therapy? Are you comfortable with that? Is that something we all feel comfortable with? Because everybody has a choice because you’re all independent contractors.”

Requesting Vaccination Records and Employee Privacy

By law, you can’t inquire too deeply into workers’ medical histories or records. “So private companies actually could mandate vaccine requirements, but they had to do it without violating the ADA and Title VII, which allows people exemptions from vaccinations for religious reasons or for health reasons,” Dones Moss says.

Saying you were concerned the vaccination wasn’t properly tested and would cause future harm was not a valid health reason, she adds. “The ADA and federal laws require that you provide some kind of medical justification, for example, a verification from a doctor that there was a medical reason or a side effect reaction. The employer could then file this away.”

Under federal law, employers can ask about your vaccination status, request your vaccination card, and even make a copy, she adds. “But then you had to maintain it, under lock and key, separate from the employee file because it was a medical piece of information.”

If the employee refused to show proof, Dones Moss says, “You had to be careful about how you approached the next step so you weren’t violating any ADA regulations, which prohibited medical inquiries.”

If an employee’s health or religious beliefs were valid, an employer had to make accommodations for them.

Reasonable Accommodations for Unvaccinated Employees

Examples of how to accommodate an unvaccinated employee could range from allowing them to work remotely to staying masked and remaining six feet away from others at all times.

“There was a case where a fire department wanted to mandate the COVID-19 vaccine, and one of the employees refused. They offered him an accommodation. Instead of being out on the ground as a firefighter, they offered him an accommodation to work within the office setting,” Dones Moss says.

“He rejected the accommodation, and that was what led to the lawsuit. And the court said, ‘Yes, you can mandate vaccinations. Yes, you made a reasonable accommodation. He rejected it. You can fire him.’”

Employment Decisions Involving Vaccination Status

There was a bill pending in Michigan that would have prohibited private employers from discriminating against unvaccinated workers, including mandates of any kind. As Dones Moss predicted, this bill and subsequent efforts did not pass into law.

Barring that, employers were allowed to be selective in their hiring and firing practices, so long as they didn’t discriminate on other grounds. “As it turned out in the therapy office example, the therapist who wasn’t vaccinated was moving away. So, moving forward, the employer was going to make vaccination a condition of contracting with them.”

And in the other example, where the employer was offering an incentive, what happened if it didn’t work? “He was trying, but I suspect that this employee wasn’t going to be tempted by that offer,” Dones Moss says.

“So, the employer was going to have to decide whether or not he was willing to keep that employee. At the time, they were at-will employees, so nothing on the books prevented them from terminating that employee. They could require vaccination on the basis that he was being a direct threat to others in the office.”

Find Legal Help

For legal advice on your company’s employee vaccination or general health policies, consult with an experienced attorney in your area using the Super Lawyers directory.