Can employers require workers to get vaccinated against Covid-19? It is not simply a Yes or No answer. As of last Friday, the percentage of fully vaccinated US citizens stood at 39.6%, a stark contrast to the 5% of the worldwide population that are fully vaccinated. Despite this remarkable achievement, six out of ten Americans remain unvaccinated against Covid-19.
According to law, can employers require workers to get vaccinated
Under the law, an employer can generally require its workers to be vaccinated and can also fire an employee who refuses to do so. Some notable exceptions, however, exist to the general rule. For example, if a work force is unionized, the collective bargaining agreement may require negotiating with the union before an employer can implement a vaccine requirement.
Anti-discrimination laws also provide some protections to workers that are disabled. Under the Americans with Disabilities Act (the ADA), workers who do not want to be vaccinated for specific medical reasons are eligible to request an exemption. In this case, an employer may need to provide reasonable accommodation, such as allowing the employee to work remotely. Another exception exists under Title VII of the Civil Rights Act of 1964. Under Title VII, if taking the vaccine would conflict with a sincerely held religious belief, a worker may be able to opt out of a vaccine requirement.
Emergency use authorization
Before the pandemic, the general position of the relevant federal agencies, such as the FDA and the CDC, was that vaccines provided under emergency use authorization cannot be mandated. But that guidance was not binding. When confronted with pandemic realities, the federal government took the position that “[w]hether an employer may require or mandate Covid-19 vaccination is a matter of state or other applicable law.” And in most states, employees are “at will,” meaning they can be terminated for any reason that is not explicitly illegal.
According to a recent article authored by law professors at UC Hastings and Harvard, those arguing that the emergency use authorization statute prohibits mandates by at-will employers are claiming that this federal law is changing existing state employment law on the topic by mere implication. Such a broad prohibition covering all employers and universities in the U.S. is not, however, in the statute. Such a blanket preemption, conclude these law professors, would require clearer language, and the status of authorization (whether full or emergency) is a red herring when it comes to the mandating of Covid-19 vaccinations.
