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

Published on: Dec 8, 2021fb-roundtwitter-roundemail-round
Team of business professionals wearing face mask sitting in office boardroom during a meeting.Design: theSkimm | Photo: Getty Images

About 60% of all US adults are fully vaccinated against COVID-19. And as many continue to head back to or prep for their return to office in 2022, employees have some questions. So we’re diving in with one: Can employers mandate COVID-19 vaccines for their employees?

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.

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).

Psst…See what US Surgeon General Vivek Murthy had to say about it here.

The White House Weighs In: Federal Mandates

As the delta variant continues to sweep through the nation in recent months, President Joe Biden and his administration have decided to take action. 

In July, the Department of Veteran Affairs became the first federal agency to require its health care workers to get vaccinated against COVID-19. Weeks later, Defense Secretary Lloyd Austin said US service members would be required to get a shot by Sept. 15. They could face punishment for refusing to get vaccinated, though there’ll be exemptions for health or religious beliefs.

Then, in September, Biden unveiled a six-part plan requiring vaccinations for nearly 100 million Americans. Including...

  • Private-sector employees: All employers with more than 100 workers have a choice: employees have to either get a vaccine or get tested weekly. Companies have to provide paid time off for employees to get their shot(s). And any business that doesn’t comply faces a $14,000 fee per violation.

    • Hold up wait a minute, in November, the admin announced that the deadline to enforce this rule is Jan. 4. And just two days later, it faced its first legal challenge from a number of Republican-led states. A federal appeals court has temporarily halted the requirement. But the Biden admin is confident it’ll be reinstated.

  • Health facilities: Workers in hospitals, nursing homes, and other health care facilities that receive reimbursements from Medicaid or Medicare will need to get vaxxed.

    • Another one: A federal judge also placed a temporary block on this mandate in November.

  • Federal gov: All federal employees are required to be fully vaccinated by Nov. 22. And so does anyone who conducts business with the federal gov. And there is no option for weekly testing. But anyone unable to get a shot for medical or religious reasons will be excused. It’s unclear what testing regulations will be implemented for anyone excused from getting the vaccine. Meanwhile, for those that don’t fall into the exemption category. They will receive “counseling” and have five days to begin the vaccination process. Or fed employees could face disciplinary action like a 14 suspension or termination.

  • Schools: Education programs and schools funded or run by the gov will require vaccinations for all staff. No word yet on a federal requirement for students to get vaxxed.

Local governments are mandating vaccines too. In December, NYC became the first in the nation to announce a vaccine mandate for all private-sector employees in the city. Workers will need to be vaxxed by Dec. 27.

And don’t expect vaccine mandates to go away anytime soon. On Aug. 23, Pfizer became the first COVID-19 vaccine in the US to get full FDA approval — which then encouraged some businesses (like Goldman Sachs and Chevron) to impose vaccine mandates. And as we continue to learn more about the new omicron variant, companies may feel motivated to set up a mandate for their workers.

Where Things Stand Today

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.)

In June, a federal judge said ‘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 the employees have appealed the decision.

Following the Houston Methodist Hospital case, a number of companies have announced that they will require some or all of their employees to be vaccinated. That includes…

  • Delta Airlines. In May, the company said it’ll require all new hires in the US to be vaccinated against the virus (unless they qualify for an accommodation).

  • Disney. The entertainment company is requiring all new, salaried, and non-union hourly employees to get their shot(s) before they come back to work. It says it’s in talks with the unions to discuss the mandate. (PS: The Walt Disney Company is a minority investor in theSkimm.)

  • Google. It became the first major tech company to require employees to be fully vaccinated to come into the office. It also said it plans to expand the mandate to other regions in the coming months.

  • Microsoft. It’s another tech giant that’s requiring employees to be vaccinated. The announcement — which came in August — also included that vendors and visitors have to show proof of vaccination as well.

  • Morgan Stanley. The bank announced in June that unvaccinated employees would be barred from its NYC-based offices.

  • Netflix. The streaming company is requiring vaccinations for the casts of US productions, as well as the people who come in contact with them on set.

  • Tyson Foods. In August, the company said its 120,000 US-based employees will need to get jabbed. 

  • Uber. In July, the ride-hailing company said employees need to be fully vaccinated before offices reopen, which is expected to happen in January. 

  • Walmart. The largest retailer in the world announced that corporate employees had to be vaccinated by Oct 4. 

  • The Washington Post. All new and current employees at the newspaper have to show proof of vaccination.

The Pros and Cons of Vaccine Mandates

The debate over vaccine mandates in the workplace raises questions about effectiveness and legality. Here’s a look at both sides of the argument…

  • The pros: Some experts and agencies have applauded Biden’s efforts to get more Americans vaccinated, saying it will help the country get back to normal sooner. And we’ve seen that vaccine mandates in the workplace lead to more people getting inoculated. See: United Airlines. In early August, when it announced its vaccine mandate for US employees, about 90% of pilots and 80% of flight attendants had received at least a shot. Right before the mandate took effect in October, the company said that 99% of its staff was fully vaxxed. Plus, research shows that getting vaccinated is good for your wallet and the economy.

  • The cons: Several Republican leaders have said Biden took things too far when he issued a federal mandate. They accused the admin of government overreach. And argued workers should have a say on their vaccine status. States like Montana and Texas have even banned employers from issuing vaccine mandates for workers. Meanwhile, there’ve been reports of employees quitting rather than getting the shot — leading to staff shortages in places like hospitals and schools. In September, a New York hospital paused its maternity services after dozens of employees quit over vaccination requirements. And the state’s vaccine mandate for health care workers left thousands of employees without a job.

Whether you support or oppose vaccine mandates in the workplace, 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

COVID-19 vaccine mandates in the workplace have now reached every corner of the country. And while many employers are choosing 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.

Updated on Dec. 8 to include NYC’s private-sector vaccine mandate.

Updated on Nov. 9 to include the first legal challenge to Biden's vaccine mandate for private employers with 100 or more workers.

Skimm'd by Macy Alcido, Maria McCallen, and Kamini Ramdeen-Chowdhury


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