Can Employers Require Workers to be Vaccinated Against COVID-19?

Published on: Jun 14, 2021fb-roundtwitter-roundemail-round
Team of business professionals wearing face mask sitting in office boardroom during a meeting.Getty Images

More than half of all US adults are fully vaccinated against COVID-19. And as coronavirus cases continue to drop across the country, life is (finally) starting to get back to normal. That includes saying goodbye to WFH and hello (again) to offices. And it’s raising questions around whether employers can require employees to get a COVID-19 vaccine before returning to the workplace.

Vaccine Mandates in the Workplace: Here’s What Officials Say...

In late May, the US Equal Employment Opportunity Commission (EEOC) updated its guidance to say that yes, employers can require employees to get a vaccine before returning to the office. Reminder: the EEOC enforces federal law that makes it illegal to discriminate against employees or job applicants based on factors like race, color, religion, and age.

But the commission said that vaccine mandates have to abide by the Americans with Disabilities Act and Civil Rights Act. Meaning: if someone can’t get vaccinated because of a disability, religious belief, or other reason, companies have to accommodate those employees and keep their info confidential. One accommodation example the EEOC gave in its guidance is for an unvaccinated employee who’s in the office to wear a face mask or social distance from coworkers.

The EEOC also said that companies can offer incentives to employees to encourage them to get a shot – as long as it’s not “coercive” (though it didn’t elaborate on what is considered coercive). Some businesses have already jumped on that bandwagon and have offered perks like extra PTO or pay, including American Airlines, Dollar General, and Trader Joe’s. And the US Chamber of Commerce has more info on ways to incentivize employees to get vaccinated.

Setting an Example: Houston Methodist Hospital

In April, Houston Methodist Hospital became one of the first hospitals in the nation to require its employees to be vaccinated against COVID-19. The privately run hospital said they could fire employees that were unvaccinated or didn’t get a medical or religious exemption to the rule. In May, 117 staffers sued, claiming that it’s illegal for their employer to make them get an “experimental” vaccine in order for them to keep their jobs, comparing themselves to “guinea pigs.” (Note: 178 of the hospital’s roughly 26,000 employees were suspended in early June for not following the guideline.)

Now, a federal judge is saying ‘case dismissed,’ saying that Houston Methodist didn’t do anything illegal and calling the claims about the vaccine “false.” The judge’s decision appears to be the first ruling to side with employer-mandated vaccines for workers. But an attorney repping the employees says an appeal is likely coming soon.

HIPAA and Your Vaccination Status

There’ve been posts on social media claiming that asking about vaccine status is a violation of HIPAA. Here’s the reality: the Health Insurance Portability and Accountability Act of 1996 – aka HIPAA – created national standards for protecting patients’ personal health info. But experts say the protection only applies to certain health entities (think: health care providers or insurance companies). So businesses or individuals can ask you about your vaccination status without violating the law. But experts also say you don’t have to give up that info if you don’t want to (though there may be consequences, like not being allowed in a certain business).

Here’s Where Things Can Get Complicated...

COVID-19 vaccines can help protect employees in the office from getting sick and could make them less anxious about coming back into the workplace. But experts say an employer vaccine mandate could be more complicated than it sounds – and potentially lead to lawsuits.

A mandate could essentially force a company to closely monitor employees in the office and create tension. An expert shared this example with The New York Times: “When you see an employee without a mask, are you going to run back to HR and verify that that person really was fully vaccinated?”

Another problem is vaccine inequity. While many Americans have gotten at least one dose of the vaccine, some face barriers when trying to get a vaccine. The racial and ethnic vaccine gap is closing in the US, but there’s still work to be done – and systemic racism in health care likely isn’t helping. The CDC has also reported that vaccination rates are higher in urban counties than rural counties, which may face issues like fewer pharmacies or unreliable internet. The EEOC says employers should keep vaccine equity issues in mind if requiring employees to be vaccinated, and that “some employees may be more likely to be negatively impacted by a vaccination requirement."

theSkimm

The debate about COVID-19 vaccines has now reached the workplace for many. And while some employers may choose to require vaccination for employees to return, it's important to remember that this issue is not as cut and dry as it might sound. If you feel comfortable speaking to your HR team about your thoughts on an office-wide mandate, reach out to make sure your voice is heard.

Last updated on June 14 – Updated to reflect the latest news with Houston Methodist Hospital.

Skimm'd by Maria Martinolich and Kamini Ramdeen


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