In many parts of the U.S., COVID-19 infections are declining, steering the pandemic toward a new and much welcomed phase. As federal and state governments work with their partners to continue ramping up vaccine production and rollout efforts, governments are easing back on the restrictions, allowing employers to gradually welcome employees back.
Even though a vaccine offers a degree of relief from the pandemic, after a tumultuous year fraught with disjointed and patchwork public guidance, many people are refusing or are still on the fence about whether to get the shot. While eligibility rules continue to evolve, adding availability for more groups, many have decided they do want the shot and are just waiting for their turn.
According to the Pew Research Center, despite a growing number of people who have either already been vaccinated or have said they do plan to get vaccinated, roughly a third of the population have said they definitely or probably would not get the shot.
After a year of economic devastation suffered by businesses whose doors were shuttered in order to curb the spread of the virus, the question is can employers now force their employees to get vaccinated before they come back to work or risk losing their job if they refuse?
In a word, Yes.
Employers can require COVID-19 vaccination as a condition of employment for current employees as well as prospective new hires. The legal precedent for this came in 2009, when the U.S. Equal Employment Opportunity Commission (EEOC) published guidelines for pandemic planning in the workplace during the spread of the H1N1virus. In March of 2020, the EEOC updated its guidance to apply to the current COVID-19 pandemic.
Even though it would appear that employers seem to have a leg up, there are certain exceptions.
In some cases, a worker may have a medical condition that precludes their ability to get vaccinated. The American with Disabilities Act (ADA) says an employer must provide reasonable accommodations to workers with medical conditions who cannot take the vaccine, if such accommodations are possible. Practically speaking, what this might look like for on-site employers could include some physical reorganization of workstations and/or common areas to accommodate long-term physical distancing in addition to alternate spaces for those with proof of vaccination. (A hot topic saved for another day.) In some cases, employers might be forced to allow some workers to continue to work from home, a model to which many business sectors have become well-adapted.
Another exception comes from Title VII of the Civil Rights Act of 1964, which says that workers can refuse vaccinations based on sincerely held religious beliefs AND that being unvaccinated doesn’t cause undue hardship to employers. In legal terms, "sincerely held" means that you must hold the belief sincerely, but the law is not concerned with qualifying the validity of the religion itself. Undue hardship is legalese for: you might not be protected by Title VII against a vaccination mandate if it's too costly, substantial, extensive or disruptive to your employer to make accommodations for you instead of just letting you go. This requires a lot more unpacking, but an important thing to note is that refusal to comply with employer-mandated vaccination under Title VII can't just be based on one's personal or political reasons.
In California, at-will private employers are legally entitled to require their workers to get vaccinated. But still, employers should be very cautious in mandating vaccinations and take the time to consider and approach each worker’s situation on an individual basis.
Businesses that need further information or help should research local policy or get legal advice to ensure they're communicating transparently with their employees, prioritizing worker safety by following CDC, state and local guidelines while also complying with statutory obligations.