Mandating COVID-19 Vaccinations: Employer Considerations

By Meaghan E. Murphy - Skoler, Abbott & Presser, P.C.

August 19, 2021

In recent weeks, large public and private employers across the country have made the news after announcing  COVID-19 vaccination policies for their employees. Some have announced mandatory vaccination policies (“hard” mandates), while others have announced vaccination policies that allow employees to choose between either getting the vaccine or wearing a mask and undergoing regular testing (“soft” mandates). These announcements reflect a shift in how the country seems to be dealing with vaccine hesitancy after months of campaigning to the public to get vaccinated voluntarily, including offers of money and other prizes.

New York City, the state of California, and the Department of Veteran Affairs (“VA”) will mandate COVID-19 vaccination for many of their employees. New York and California’s soft mandates come with the option of wearing a mask and receiving testing at least once a week if a worker does not want to be vaccinated. The VA’s hard mandate does not offer another option for its medical employees. Massachusetts will require staff at long-term care centers to be fully vaccinated against COVID-19 by October 10.

Recently, the White House announced that it will require every federal government employee and onsite contractor to attest to their vaccination status. Those who do not attest must wear a mask on the job no matter their geographic location, physically distance from all other employees and visitors, comply with a weekly or twice-weekly screening testing requirement, and be subject to restrictions on official travel.

In addition, companies like Google, Netflix, Morgan Stanley, and The Washington Post have announced vaccine requirements for their employees. Not surprisingly, many hospitals and other employers in the health care industry have also mandated vaccines for their employees, volunteers, and contractors.

Even the NFL is cracking down on the unvaccinated after COVID-19 breakouts on several teams threatened to cancel many NFL games last season. Although the NFL has not implemented a mandatory vaccination policy, it issued a memo to all 32 teams warning them that the NFL will not tolerate players, coaches, and staff who do not mitigate COVID-19 health and safety issues. Significant financial penalties can be imposed on individual players and teams for violations of the league’s COVID-19 protocol.

Given the above, employers of all sizes should be considering whether a COVID-19 vaccination policy makes sense for their workforce, and if so, whether a “hard” or “soft” mandate works best. Here are some questions for employers to consider:

Q:   Can private employers mandate that employees receive the COVID-19 vaccine?

A:   In most states, yes. The Department of Justice officially announced that federal law does not prevent private businesses from mandating employee vaccinations. That is true even though the COVID-19 vaccines available are only subject to an emergency use authorization. With that said, employers should familiarize themselves with any state laws that apply to them. Some states have enacted laws prohibiting vaccine mandates, although the vast majority of them only apply to state and local governments (i.e., they do not to private employers).

Q:   Are there any caveats?

A:   Yes (of course). The same exceptions that employers have already been dealing with throughout the pandemic when discussing, for example, mask mandates or remote work, will apply to vaccination programs. Federal and most state laws require employers to provide reasonable accommodations for religious beliefs, disabilities, or pregnancy. These are commonly referred to as medical and religious exemptions. Employers that are considering a mandatory vaccination program should have policies explaining how these exemptions work, as well as exemption forms ready for employees to fill out.

Q:   If an employee requests a medical or religious exemption and provides a note from their doctor or spiritual leader does that mean the employer must accommodate them?

A:   No. It just means that the employer needs to consider whether the employee has a disability or a religious belief that qualifies for an accommodation and then see whether there is actually a reasonable accommodation that can be provided. That determination should be made on a case-by-case basis. There will certainly be occasions when the employer can exclude an unvaccinated worker from the workplace, despite the medical or religious reason and supporting information or documentation. That is because unvaccinated workers can be a direct threat to themselves or others and employers are not obligated to provide an accommodation that is an undue burden on the employer or not reasonable. As with other types of accommodations, employers must engage in the interactive process and assess each request based on its own set of circumstances.

Q:   What types of religious beliefs qualify?

A:   Unfortunately, there is no clear answer to this question other than that the beliefs must be “sincerely held.” Existing guidance from the Equal Employment Opportunity Commission provides that employers typically should not challenge an employee’s sincerely held religious beliefs. Many state laws track that guidance. It should be noted, however, that most of the major religions do not have any prohibitions on vaccinations as part of their faith. In fact, many faith leaders have been encouraging people to get vaccinated. In the rare instances that an employer is entitled to push back on an employee’s request for a religious exemption, the employer must have objective facts to go on – and not just speculation – leading them to question if the employee’s beliefs are sincerely held.

Bottom Line

COVID-19 vaccine mandates do not solve all the problems an employer has in dealing with the pandemic, but they solve several, including dealing with quarantines, contact tracing, symptom tracking, travel restrictions, and more. Employers need to understand that mandates may lead to other obligations, such as providing employees with paid time off to receive the vaccine and dealing with its side effects. COVID-19 vaccine mandates – whether “hard” or soft” – may not be for every employer, but they are good solutions for many. If you are moving forward with a vaccine mandate, the first step is to develop a policy and run it by competent employment counsel to ensure it complies with all applicable laws.