Not surprisingly, vaccines are on a lot of people’s minds these days.
After months of social distancing and worrying about getting sick, many people can’t wait to line up for a COVID-19 shot. But there are still plenty of others — 32%, according to a Centers for Disease Control and Prevention survey — who say they don’t want to get the shot.
But what if your workplace required vaccination as part of your job? Given the seriousness of COVID-19, that could become a reality at certain companies.
“I think employer mandates will be rare, but will happen in some places,” said Dorit Reiss, Ph.D., a professor of law at UC Hastings College of the Law in San Francisco, and an expert on vaccine-related legal and policy issues. “Employers will be more likely to mandate if they think it will protect them from future closures or if their employees interact with high-risk populations and have low voluntary vaccinates rates.”
Who can mandate
In the past, most mandatory vaccinations have been in the healthcare, aging care, and childcare fields. Employees working in medical fields are often required to get shots for diseases like the flu, measles, and hepatitis B, Reiss said.
Legally, though, just about any employer can require employees to get a vaccine as part of their ability to set health and safety work conditions, she said. That’s because most jobs in the United States are “at will,” which gives employers the right to end employment at any time for almost any legal reason.
In 2009, the federal Equal Employment Opportunity Commission (EEOC) weighed in to say that mandatory workplace vaccination programs didn’t break anti-discrimination laws. It also recently updated its guidance to include COVID-19 vaccines.
Private companies aren’t the only ones who can mandate vaccinations. States and cities have that power, too, Reiss said. In most cases, local governments apply those mandates to healthcare settings or schools. But in 2019, New York City required that people living in four Brooklyn zip codes get vaccinated for the measles after a major outbreak.
The federal government can’t enforce countrywide mandates, Reiss said, although vaccines could be a requirement for specific circumstances such as getting a passport or entering a federal building. In either case, governments can’t force someone to get a shot, but instead they might leverage a tax or fine, she said.
Still, outside of schools, it’s “much more common for employers to adopt vaccination mandates than states,” Reiss said.
The two most common vaccination exemptions employees can ask for are a medical and a religious exemption. Some states also allow for philosophical objections, which are based on “moral, philosophical or other personal beliefs.” And depending on the language in a collective bargaining agreement, companies might need approval from a union to mandate union employees get a vaccine.
Here is a look at medical and religious exemptions:
Medical exemptions: The Americans with Disabilities Act bans discrimination based on a disability. So if it isn’t safe for an employee to get a vaccine because of a disability or illness, they can ask for an exemption. Under the ADA, employers must then offer a reasonable accommodation to those employees so that they can still do their jobs. That might include the chance to work remotely or to wear extra personal protective equipment as long as those accommodations don’t cause an undue hardship for the employer.
“That’s a pretty high bar in this case, meaning that the company would have to show that the employee not getting vaccinated would cause a significant difficulty or expense,” Reiss said.
Religious exemptions: Under Title VII of the Civil Rights Act of 1964, employers can’t discriminate against employees “based on race, color, religion, sex and national origin.” That leaves room for employees to ask for a vaccination exemption based on “sincerely-held religious beliefs.”
Unlike with the ADA exemption, though, the “undue burden” for employers is pretty low, Reiss said, “meaning no more than minimal costs.” In theory, that could make it easier for an employer to refuse a religion-based vaccination exemption, but “challenging a claim of sincere religious belief is full of pitfalls,” Reiss said.
Incentives over mandates
Instead of mandating vaccination, Reiss believes many more companies will use incentives to encourage employees to get a COVID-19 vaccine.
Several big-name companies have already done just that. Kroger is giving employees $100 for getting vaccinated and Target employees can get four hours of pay and subsidized LYFT rides.
Vaccine mandates, meanwhile, are not very common so far. Only 1% of companies have an employee vaccine mandate in place and only 6% said they plan to put one in place once vaccines are more readily available, according to a recent COVID-19 Vaccine Employer Survey Report.
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