With vaccination coverage in the U.S. at rates too low to fend off the delta coronavirus variant, several employers – including the federal government – are turning to vaccine requirements for their workers. For some, it begs the question: Is that legal?
Though there are certain limitations, the short answer is likely yes.
“The starting point for this is that employers, private or public, have both the right to set workplace conditions and a duty to provide a safe workplace for the employees,” says Dorit Reiss, a professor at the University of California Hastings College of the Law.
Both New York and California have required government employees to get vaccinated against the coronavirus or undergo weekly testing. The Department of Veterans Affairs last week became the first major federal agency to require health care workers to receive the shot, and President Joe Biden quickly followed by requiring federal employees to attest to their vaccination against the coronavirus or undergo several mitigation measures including masking and regular testing.
Photos: COVID-19 Vaccinations
Private companies like Google and Facebook have also implemented vaccine rules for employees returning to the office. Enforcement mechanisms for these types of policies, however, are not yet clear. Some businesses might require employees to simply pledge that they are vaccinated while others could require proof.
Many of the employers who have asked workers to get vaccinated have offered alternatives like weekly testing for those who do not want to get inoculated, hoping that the added inconveniences will move the vaccine-hesitant toward the shot.
Experts said that while businesses typically can require vaccines, offering other options could help limit pushback.
“I think that it would be legal even if employers didn’t offer that opt-out, but offering it certainly makes things easier because then they don’t have to deal with individual requests for disability accommodations and religious accommodations and so forth that they would have had to otherwise,” says Kevin Cope, an associate professor at the University of Virginia School of Law.
Can a Vaccine Only Authorized for Emergency Use be Mandated?
Most experts believe a coronavirus vaccine that is authorized for emergency use can likely be mandated by businesses.
The Justice Department recently released an opinion stating that federal law does not prohibit businesses from requiring vaccines even if the vaccines have only been granted emergency use authorization by the Food and Drug Administration and have not received full regulatory approval. It said that the relevant section of the Food, Drug, and Cosmetic Act concerns “only the provision of information to potential vaccine recipients and does not prohibit public or private entities from imposing vaccination requirements for a vaccine that is subject to an emergency use authorization.”
Earlier guidance from the federal Equal Employment Opportunity Commission said that federal laws prohibiting discrimination in the workplace “do not prevent an employer from requiring all employees physically entering the workplace to be vaccinated for COVID-19.”
“I think whether you can mandate the vaccine under an EUA – there’s more and more reasons to think that, yes, you can. But there’s still some uncertainty,” Reiss says.
But a full approval from the FDA could prompt more businesses to feel comfortable issuing vaccine mandates.
“Those who want to compel or mandate employees to take it will be on even stronger legal footing,” Cope says, adding that they might also be on “stronger political footing,” since some who oppose getting vaccinated cite a lack of full FDA approval for the shots.
What are the Limitations?
Reiss lays out three limitations for workplaces eyeing vaccine mandates: workers protected by the Americans with Disabilities Act of 1990, those citing religious grounds under the Civil Rights Act of 1964 and if the workforce has a union with a collective bargaining agreement that could require negotiations before a mandate can be put into place.
Under the ADA, a workplace must provide reasonable accommodations that do not pose an “undue hardship” on the operation of the employer’s business. Should an office implement a mask mandate and, for example, a worker is allergic to the COVID-19 vaccine, the worker may have to wear a mask in the workplace and undergo testing.
Similarly, under the Civil Rights Act of 1964, an employer must accommodate a worker who has a religious objection to a workplace rule, which could mean the individual must work remotely.
But businesses also need to monitor state legislation and executive orders. Some Republican-led states have sought to limit requirements with bans on vaccine mandates or so-called vaccine passports.
While the majority of state-level action applies to government agencies and other state institutions, some go as far as to include private businesses. Under a new state law in Montana, for example, employers can’t mandate vaccinations except in some health care settings.
Have Any Cases Gone to Court?
At least one challenge has been decided in court.
A federal district court in Texas in June found that a vaccine mandate from the Houston Methodist Hospital was in line with public policy after medical workers challenged the requirements.
But the decision likely won’t prevent other groups from trying their hand in court.
“I expect we will see more legal challenges,” Reiss says. But she adds that the EEOC’s guidance and the Texas ruling are “well written and persuasive” and could make it harder to win future cases.
If the current policies that include opt-outs are successful and vaccination rates improve, Reiss says it’s likely employers will stick with the softer mandates instead of implementing all-out mandates.
“I think whether we’ll see more mandates will depend on what the softer mandates do, because remember the cost to mandating – you have to enforce it – means that you may lose qualified people,” she says.