When the U.S rollout of COVID-19 vaccines began in December 2020, the Centers for Disease Control and Prevention (CDC) recommended that doses be administered in three phases. The first doses (phase 1a) would go to health care personnel and residents of long-term care facilities, the second (1b) to frontline essential workers, and those who are 75 years old and up, and the third (1c) to people ages 65 to 74 years old, people who are 16 to 64 years old with underlying medical conditions, and other essential workers.
However, in the weeks since the rollout was initiated, vaccine distribution and administration has faced major setbacks including registration issues, dwindling supply, and overwhelming demand from hopeful recipients in states throughout the U.S. While the vaccine is currently in limited supply nationally, the CDC expects to ramp up stock in the coming weeks and months, and the agency will expand its recommendations as availability increases.
As more people are eventually able to access the vaccine, one of the prevailing questions—particularly as employees return to the office—is how employers will handle vaccine requirements in the workplace.
Employers Can Likely Require Most Employees to Get Vaccinated
The Equal Employment Opportunity Commission (EEOC) and Occupational Safety and Health Administration (OSHA) permit employers to mandate vaccines, subject to certain limitations, said Shannon Farmer, a labor and employment partner at Ballard Spahr LLP, in an email interview with The Balance.
Employers may mandate vaccines if allowing an employee to work without vaccination would pose a “direct threat” to others in the workplace, Farmer said. A direct threat is a significant risk of substantial harm to the health and safety of the individual or others that cannot be reduced or eliminated by reasonable accommodation.
Subject to any state law restrictions and rights the employee may have to accommodation, an employee who cannot be vaccinated or will not be vaccinated can be excluded from the workplace by the employer.
Farmer said that there have been questions about whether employers can mandate COVID-19 vaccination as the currently-approved Moderna and Pfizer vaccines are operating under an Emergency Use Authorization (EUA) from the U.S. Food and Drug Administration (FDA), and not a full approval.
The EUA requires that people receiving the vaccine be notified that the vaccine is approved only under an EUA and that they have the right to accept or reject it. This requirement relates to informed consent being given by the recipient to the provider administering the vaccine, and doesn’t necessarily impact whether an employer can require that an employee get the vaccine.
The EEOC notes in its guidance that while the vaccines are administered under an EUA, it still advises that employers can mandate employees to receive vaccines. There are currently no court decisions addressing this, so there is still some uncertainty surrounding the issue, Farmer said.
Farmer recommends that small business owners looking to make a COVID-19 vaccination mandatory in their workplace should read EEOC guidance on the topic.
Exceptions to a Mandatory Vaccination Program
Any vaccine program must provide a way for employees to request an accommodation if they are unable to receive a vaccine due to disability or a sincerely held religious belief, Farmer said.
Generally, employers are not required to accommodate people who claim personal reasons, separate from religion or disability, to avoid vaccination, she noted. Federal courts have previously found political, sociological, or philosophical beliefs to not be protected.
In order to exclude an employee who can’t receive a vaccine due to a disability, an employer must show that the unvaccinated employee would pose a direct threat.
This determination requires an individualized assessment based on the workplace and job duties. For example, someone who works in an isolated area may not pose a direct threat, whereas someone who works in a highly populated space might.
However, Farmer said, the determination that an unvaccinated employee may pose a direct threat does not end the analysis nor allow the employer to exclude the employee from the worksite—or take any other action—unless there is no way to provide a reasonable accommodation (absent undue hardship) that would eliminate or reduce this risk.
Similarly, if an employee’s “sincerely held religious belief, practice, or observance” prevents vaccination, the employer must provide a reasonable accommodation unless doing so would cause an undue hardship.
Employers should presume that requests for religious accommodation are sincere. Nonetheless, if an employer has an objective basis for questioning either the religious nature or sincerity of the belief, the employer may request that the employee provide additional supporting information.
If reasonable accommodation for employees seeking a vaccine exemption due to a disability or sincerely held religious belief is not possible, then the employer lawfully may exclude that employee from the workplace.
Before deciding to terminate a worker, the employer should determine if any other rights apply under Equal Employment Opportunity (EEO) laws or other federal, state, and local legislation, including any potential rights to leave. State or local laws may also provide additional protections to employees.
How Should Employers Talk to Employees About Vaccination?
“First and foremost, talk to an attorney who understands the ins and outs of employment law when it comes to vaccines, particularly in your industry,” Angelique Rewers, CEO and founder of The Corporate Agent, told The Balance in an email. “From there, no matter which direction you decide to go in, prioritize trust, transparency, safety, and respect for employees when discussing vaccine policies.”
Explaining the why behind your policies can help to build trust and show employees that you respect them enough to give them the whole picture. Rewers suggested that if you’re thinking of creating a new policy, consider first running it by a number of employees and/or customers for feedback.
Employers should be proactive about communicating with employees. “Get a policy in place in advance and be ready to answer frequently asked questions. But again, work with your attorney on those responses,” Rewers said. “Also, make sure you communicate to employees that this is an ongoing, evolving conversation.”
Business owners should also stay informed about what their industry and competitors are doing. Follow the news, and keep tabs on the overall tone and mood of the conversation.
Rewers recommends bringing HR, communication, and legal experts into the planning and crafting of a vaccine policy.
How Are Some Businesses Approaching Vaccinations?
Rewers’s own company doesn’t require employees to share whether or not they’ve been vaccinated, but if they are willing to share, it helps the business have a better understanding of its level of protection.
She’s already started a dialogue with employees about vaccination, and has been transparent about the company’s intentions in terms of potential future in-person activities and travel. Rewers added that when the opportunity to get vaccinated arrives, her employees won’t need to use paid time off (PTO).
Meanwhile, Ballard Spahr partner Farmer said that employers of frontline workers who are eligible to receive the first round of vaccines generally have chosen not to make the vaccine mandatory. This, she noted, is to not exacerbate existing staffing shortages and stress on these workers.
When it comes to how businesses in general should address vaccine policy, Farmer said, “There is no one-size-fits-all answer to whether any business should make vaccines mandatory for some or all employees.” She added that employers should consider the practical implications of trying to force employees to be vaccinated—including the logistics of administering such a requirement, the burden of managing accommodation requests, the potential loss of staff if employees are excluded from the workplace, the impact on morale, and the potential for litigation.
- Employers may mandate vaccines in appropriate circumstances, subject to the obligation to accommodate employees with medical or religious reasons not to get the vaccine.
- Business owners should stay on top of legal developments, and be familiar with any state or local laws that could impact their decision.
- Involve HR and legal experts in the planning process when crafting a vaccine policy.
- Be proactive about communicating with your employees in regards to a COVID-19 vaccine. Openness about the reasoning behind your policy will help to gain workers’ trust.