Can my employer require me to get the COVID vaccine?

Months after the COVID-19 vaccines were released and days after the Pfizer vaccine becomes the first to gain full federal regulators' approval, questions remain about the legality of employers mandating the vaccine, as well as employer and employee privacy rights. Corporations from MolsonCoors to Interpublic Group of Cos. are requiring employees be vaccinated and the Association of National Advertisers is expected to require vaccinations for in-person attendance at its “Masters of Marketing,” slated for Oct. 8-9 in Orlando. Here, we'll answer some common questions surrounding the legal rights of employers and employees. Can employers legally mandate employees get vaccinated against COVID? Short answer: Yes. The U.S. Equal Employment Opportunity Commission has allowed employers to mandate the flu vaccine, among many others, to employees to protect the safety and well-being of the workforce from a "direct threat." On May 28, the EEOC cleared up any confusion about the COVID vaccines—shots from Johnson & Johnson and Moderna remain under Emergency Use Authorization by the U.S. Food & Drug Administration—by allowing an employer COVID mandate. Are there exceptions? Yes. Employers are required to provide reasonable accommodations for employees who are exempt from mandatory immunization based on the Americans with Disabilities Act, Title VII of the Civil Rights Act and other federal laws that bar a mandate for medical or religious reasons. The EEOC was also clear that employer requirements and incentives to get a vaccine can't be "coercive," but didn't specify what coercive meant. However, the exemptions are very limited. Employers are legally allowed, via the EEOC, to force the employee to document a medical condition that prohibits a vaccine. Religious exemptions are even more narrow. An employee protesting the vaccine would have to demonstrate where in the "tightly held" religious belief it prohibits inoculation. In the past, some employees have used Christian beliefs to deny vaccines that contain human stem cells, such as rubella and Hepatitis A vaccines. None of the three COVID vaccines currently in use contain human stem cells; however, the J&J vaccine uses them in producing the shots. But if an employee can provide a reasonable exemption, an employer is required to provide accommodations, which could mean requiring the employee to work for home or wear a mask in the office, for example. Can an employer fire employees for refusing a vaccine? Yes. An employer can terminate an unvaccinated employee who "would pose a direct threat due to a 'significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.'" For example, if a manufacturer required the vaccine and could not maintain the safety of the workforce due to close working environments, even with masking, any employee not receiving the vaccine could be terminated. Houston Methodist terminated or accepted the resignation of 153 employees after mandating the vaccine. A lawsuit quickly ensued, but a federal judge dismissed the suit over legal precedent. Can my employer ask about my vaccine status? Yes. An employer can ask for proof of vaccination, whether it mandates the vaccine for employees or not. Federal guidelines require employers to maintain a safe working environment, and dropping mask mandates and other safety protocols put employers in a bind, so they may ask to see your vaccination card before allowing you into the office. But under EEOC guidelines, an employer may not inquire further about medical information to avoid running afoul of the ADA. Isn't that a violation of the Health Insurance Portability & Accountability Act of 1996 (HIPAA)? No. HIPAA is a national standard that only applies to health-care organizations and insurers. The standard governs hospitals, doctors, etc. from sharing patient medical information with outside groups without the consent of the patient. Other businesses are not governed by HIPAA, nor are employees within a health-care organization. Can an employer provide vaccines on site? Yes. Many have already, and now that the FDA has approved the Pfizer vaccine, it will become much easier to do so. While vaccines were under an Emergency Use Authorization, doses had to be purchased directly by the federal government and distributed to public health organizations, communities and hospitals. With federal approval, Pfizer can sell and distribute the vaccine directly to the private sector, allowing more options for employers to host on-site clinics. Can my employer require a flu vaccine, too? Yes. The EEOC allows employers to mandate the flu vaccine. Like explained above, there are some medical and religious exemptions. The Centers for Disease Control & Prevention recommends that everyone 6 months and older get a flu vaccine every year, and provides guidance for employers on how to host a flu vaccination clinic at their place of work. This story was intially written and run by Dustin Walsh of Crain's Detroit Business and Katherine Davis of Crain's Chicago Business

Can my employer require me to get the COVID vaccine?

Featured Stories