While doses are still in a limited supply, newly authorized COVID-19 vaccines pose logistical and public health questions for legislatures on the local, state, and federal levels to answer. But the vaccines also bring questions of workplace safety, legal capacity, and personal choice to employers and their employees.
With the help of legal and medical experts, we’ve answered some of the most pressing questions about the coronavirus vaccine and your employment. Remember, in an unprecedented time like this, many regulations are up in the air. These experts are answering to the best of their ability given the known circumstances.
Can my employer require me to get the COVID-19 vaccine?
Yes, it is likely lawful for employers to mandate the vaccine for COVID-19.
“Employers generally set rules for the workplace in many areas. One of the areas is health and safety,” says Dr. Dorit Reiss, a law professor at UC Hastings Law School. Reiss mentioned that health care workers are required to wash their hands and have certain protocols for dealing with contaminated needles in the workplace. “A vaccine requirement is another health and safety rule,” says Reiss.
The COVID-19 vaccines made by Pfizer and Moderna were authorized for Emergency Use Authorization (EUA) by the Food & Drug Administration—they were not approved through the typical approval process.
“The only time a vaccine was authorized by a EUA before was in 2005: an Anthrax vaccine for the military. We’re on new grounds,” says Reiss, who has expertise in vaccine law.
While the U.S. Equal Opportunity Employment Commission recently confirmed that employers can require the COVID-19 vaccine, it did not specify whether that includes a vaccine under the EUA.
“There is legal uncertainty about whether you can mandate a vaccine under an EUA. I expect some employers may not be aware of this and will go ahead and mandate the vaccine anyway, and this will at some point be tested in court. My perspective is that this could really go either way. The law is not very clear,” Reiss says.
What are exceptions to a mandatory vaccine requirement?
Reiss says there are multiple circumstances in which a worker would be exempt from vaccine requirements.
First, for unionized workforces—depending on the collective bargaining agreement—an employer may have to negotiate with the union before requiring a vaccine.
Second, according to the Americans with Disabilities Act (ADA), employers are required to accommodate employees with a disability—in this case including any vaccine medical contraindications (adverse reactions or preexisting conditions that would make vaccine use unsafe)—unless it’s an undue hardship to the employer. In this case, “undue hardship” means a significant imposition on the employer.
“Now, accommodation doesn’t mean you let them come to work without the vaccine like everybody else,” Reiss says. “It could mean for example, you let them come to work but require PPE or require they be isolated from the other workers and so forth.”
Third, employers cannot legally discriminate against employees for religion—one of the protections established with the Civil Rights Act of 1964.
The definition of religion in this case is not specifically formalized religious groups—it’s about the personal belief of an individual, and the sincerity of that belief. It includes longstanding organized religions as well as new, uncommon, and smaller religions.
“If you have a believer in the Flying Spaghetti Monster who has a sincere religiously based opposition to this vaccine, that’s enough,” says Reiss, who added that “enforcing ‘sincerity’ is a bit of a landmine.”
Employers must legally accommodate religious exceptions, but at no more than a minimal cost to the employer, said Reiss.
Does the legality of vaccine mandates vary depending on whether my employer is in the public or private sector?
Whether you’re a public- or private-sector employee shouldn’t make a huge difference, despite differences in law.
“Public sector employers also are subject to the Constitution and have to respect constitutional rights, while private employers don’t. For example, the First Amendment will apply to a public employer but not a private one,” says Reiss.”It’s not as big a difference, though, because the Civil Rights Act of 1964 already covers freedom of religion, which is the main part of the First Amendment that is relevant here.”
However, most private sector employees are employed at-will, which means that your employer can fire you for any reason, as long as the employer is not discriminating against you because of your race, sex, religion, national orientation, gender identity, or sexual orientation. Public sector employees generally require “cause” for termination.
“If you violate a work rule, they can definitely fire you,” says Reiss.
Does the legality of vaccine mandates vary depending on the type of work I do?
Yes, but whether you have a vaccine mandate won’t be the same for all businesses in an industry.
“It’s very much going to be workplace by workplace,” says Reiss. Definitions of essential workers vary state-by-state. “Restaurant workers may not be defined as essential workers, but the restaurant may make the decision to require the vaccine to protect the business.”
It’s much more likely that health care workers will see a mandate.
“There are standard vaccines that are required for hospital workers, including pertussis, hepatitis B, measles, mumps, rubella, and chickenpox,” says Dr. Mary Anne Jackson, dean and professor of pediatrics at University of Missouri-Kansas City School of Medicine. “Influenza vaccine is the one that is mandatory as there is a yearly requirement for all.”
“Several states, including Alabama, Connecticut and New Hampshire, require health care workers to receive certain vaccinations, and employer requirements are common in this industry, writes the law firm Covington & Burling in a report about the COVID-19 vaccine and the workplace.
“Having a health care workforce that is immunized [...] is part of our duty of care—that being our obligation to avoid an act of omission that could cause harm to our patients,” says Jackson.
What happens if my employer requires the vaccine, and I’m not exempt, but I don’t get vaccinated?
While an employer mandate can come with a range of consequences including termination, that doesn’t necessarily mean the company will fire any and all workers who do not comply.
“A mandate doesn’t necessarily mean you’ll impose a consequence,” says Reiss. Other consequences include employers requiring that unvaccinated workers to wear a mask or work from home.
Is vaccination a personal choice or a public health tool?
It depends on who you ask, and depends on how the COVID-19 vaccines work.
Jackson sees vaccination in general as a public health tool and has published a paper on the topic in regards to the flu vaccine.
While research currently proves the efficacy of the Pfizer and Moderna vaccines to prevent disease, the vaccines’ ability to prevent transmission has not been fully studied. Therefore, while the vaccines are proven to significantly reduce the chances of contracting COVID-19, there is no information about whether the vaccine protects other people, too—the way wearing face masks protects others.
“Generally vaccines do both—protect the person vaccinated and also protect others. The vaccine probably will prevent transmission to at least some extent, but we don’t have data about that yet. If the vaccine doesn’t prevent transmission, we’re in a very different world legally, with a lot less justification to impose a mandate,” says Reiss.
“Because of workers’ compensation, if a worker is hurt in the workplace, then the employer is liable, and employers have the responsibility to protect workers on the site. An employer can require a vaccine to protect the worker themself. It’s a legally stronger rule if a vaccine prevents transmission and the employer can say it’s to protect the other workers and customers,” says Reiss.
We will continue to find new answers to our questions about vaccination and employment as more research is done, more people are vaccinated, and more of these issues are brought to the courts.
About our sources
Dorit Rubinstein Reiss, PhD is a Professor of Law at UC Hastings College of the Law. She is a member of the Vaccine Working Group on Ethics and Policy. Her areas of academic interest include school mandate, policy responses to non-vaccinating, and administrative issues related to vaccines.
Mary Anne Jackson, M.D., F.A.A.P., F.P.I.D.S., F.I.D.S.A. is a Dean and Professor at the University of Missouri - Kansas City School of Medicine. Her areas of research includes vaccine implementation, judicious use of antibiotics and prevention of antibiotic-resistant infections.