The Truth on Can Employers Really Mandate a COVID-19 Vaccine?

Posted by Seraine Page on Mon, Aug, 23, 2021

COVIDVaccine-01-1The question has circulated for a while: Can employers mandate a COVID-19 vaccine?

The answer isn’t as straightforward as one would think. But now that companies like Facebook and government entities like the VA are requiring employees to get the jab, it’s important to share what that means for both employers and employees. Some employers are even including the mandate in job listings these days.

Below, we share insight from a lawyer and attorney on the rules for employee mandated vaccines still under emergency authorization and who may be exempt. Plus, we’ll share a few ideas for incentivizing your staff to get their shots. 

Here’s a look at the most pressing question in the business world right now.

COVID Vaccine Mandates: Are They Really Allowed?

Nationally, mandatory COVID-19 vaccines are becoming the norm and widespread in workplaces like hospitals and school districts. Before making the personal medical decision to receive the vaccine, some employees are asking whether it’s necessary and if they can keep their jobs if they refuse.

Employers everywhere are learning the legalities and making decisions about whether to fire workers or mandate weekly COVID testing. It’s new ground for many businesses, but it’s a concern that must be addressed in the midst of an ongoing pandemic that doesn’t seem to be slowing down.  

Written policies are best when it comes to creating a serious mandate and will take collaboration among more than just members of a wellness committee. Below, you’ll find legal insight that may provide helpful answers to difficult questions your employees may ask if you opt for a mandate.

What a Lawyer and Attorney Have to Say on the Matter

Now that thousands of hospitals and health systems have issued vaccine mandates, others — like school districts — are jumping on board, too.

Many individuals being told they are required to have a mandated vaccine are pumping the brakes, though. With questions about the safety of the vaccine and personal freedoms, there has been plenty of resistance to the mandates.

But some employees may have little choice if they work in at-will states.

David Clark, lawyer and partner at The Clark Law Office, in Michigan, answers some common questions regarding the vaccine. Here is what this long-term lawyer has to say about the mandates:

Is a vaccine mandate allowed by employers?

“Federal law allows employers to require employees to get COVID vaccinations subject to lawful exemptions such as when the employee refuses to do so on religious grounds and protected medical conditions. Employers in states that follow at-will employment may lawfully terminate employees for any reason, including refusal to be vaccinated, except those considered as explicitly illegal."

What are an employee’s rights when it comes to these types of mandates?

“Employees have a lawful right to refuse vaccination even when this is mandated by employers. That right is however subject to the legal right of employers to keep the workplace and the workforce safe given the declaration of a public health emergency. In this case, employers in states following at-will employment can mandate conditions for continued employment — including vaccination.” 

Have any cases gone to court over this?

“Several lawsuits have already been filed questioning the legal and policy arguments on the mandated use of EUA. This includes the cases filed by seven employees of the Los Angeles United School District and a corrections officer of The Doña Ana County Detention Center in New Mexico. Expect more cases to be filed as more employees go back to work, and more employers feel the pressure from vaccinated employees.”

What About Those Employees Refusing Shots?

Have an employee who is refusing to get their shots? There is some wiggle room under the EEOC and ADA, according to attorneys.

The Equal Employment Opportunity Commission (EEOC) has historically advised for the flu vaccination that an employee may be exempt from a mandatory vaccine if the employee has a disability covered by the Americans with Disabilities Act (ADA) that prevents them from taking the vaccine,” explains David Reischer, Esq., Attorney and CEO of Additionally, an exemption is permitted as a reasonable accommodation under the ADA unless there is undue hardship, which the ADA defines as significant difficulty or expense for the employer.”

Reischer also stated that under the religious accommodation provision of Title VII of the Civil Rights Act of 1964 that an employee may be excused from a workplace vaccine mandate.

“In such instances, an employee may be exempted if taking the vaccination would violate sincerely held religious beliefs, practices, or observances. In such instances, an employer must provide a reasonable accommodation unless it would pose an undue hardship, which under Title VII is “more than de minimis cost” to the employer’s business. This standard is slightly lower than the standard of undue hardship under the ADA.”  

Additionally, any union-represented employee may require a bargain and reach an agreement with the union before mandating vaccines.

Challenges to COVID-19 Mandates

Unions have also been fighting the vaccination mandates. From meatpacking unions to teacher unions and even federal government contractors, employers are finding they need to bargain with unions over the mandates. 

Even colleges are facing backlash from students who aren’t interested in a vaccine mandate. On August 12, the Supreme Court announced it wouldn’t hear an appeal from Indiana University students who filed an emergency petition in opposition to the university’s COVID-19 vaccine mandate.

 The case titled Klaassen v. Trustees of Indiana University is the first COVID-19 vaccine requirement case to come before the Supreme Court.

How Employers Can Incentivize and Promote the Vaccine

Planning to require employees to get a vaccine?

Then it’s best to update your written policies to reflect that.

It’s also important to think of the overall attitude of employees in the workplace in the event a policy update is being considered. If a vast majority of employees are against the vaccine and your company wants to mandate it, will you fire all those employees and then work to replace them?

These difficult decisions are ones leaders have to make given the current climate as employees will also want to be reassured about workplace health and safety. Having clear policies in place helps everyone get on the same page. To prevent the spread of misinformation, share any updated policies and any new information on the vaccine from the local health department, the vaccine manufacturers, World Health Organization (WHO) and Centers for Disease Control and Prevention (CDC).  

Additionally, if you want to see more of your staff get vaccinated without a mandate requirement, try these solutions:

  • Monetary incentives - From college campuses to soap-making businesses, a variety of workplaces and facilities are looking at ways to encourage individuals to get their COVID vaccinations. Cash rarely is going to get turned down!
  • Prize giveaways - Offer some unique giveaways to employees who cooperate and get their shots. Raffle off restaurant gift cards, spa gift cards, Amazon gift cards, and the like to get your team excited and feeling incentivized.
  • Paid time off - Opt to give employees time off to recover from any vaccine side effects they may experience. You might also go a step further and offer extra paid vacation days to those who comply with the vaccine request.
  • Host a vaccine clinic - Bring the vaccine to the workplace to make it even easier for your employees to get the shot. This takes out the need for traveling or scheduling the shot. 

Last but not least, lead the way in promoting vaccines. If you host a vaccine clinic, be sure leadership is right there alongside employees getting their jab. Leadership buy-in is one way to get your team feeling like you’re in this together in making the workplace a safer place.

Is your workplace mandating COVID-19 vaccines? How do you incentivize employees who get the shot?

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Topics: Healthy Workplaces, COVID-19


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