WASHINGTON — The U.S. Department of Veterans Affairs. The state of California. New York City. Hospitals and nursing homes. Colleges and universities. Employers are putting COVID-19 vaccine mandates into place and it’s getting attention.
On Tuesday, President Joe Biden said a requirement is under consideration for all federal employees. But what happens if workers refuse?
Federal legal guidance out this week suggests the law is on the side of employers. Vaccination can be considered a “condition of employment,” akin to a job qualification.
That said, employment lawyers believe many businesses will want to meet hesitant workers half-way.
Can employers require vaccination?
Yes. Private companies and government agencies can require their employees to get vaccinated as a condition of working there. Individuals retain the right to refuse, but they have no ironclad right to legal protection.
“Those who have a disability or a sincerely held religious belief may be entitled to a reasonable accommodation under civil rights laws, so long as providing that accommodation does not constitute an undue hardship for the employer,” said Sharon Perley Masling, an employment lawyer who leads the COVID-19 task force at Morgan Lewis.
Employees who don’t meet such criteria “may need to go on leave or seek different opportunities,” she added.
The U.S. Justice Department addressed the rights of employers and workers in a legal opinion this week. It tackled an argument raised by some vaccine skeptics that the federal Food, Drug & Cosmetic Act prohibits employers from requiring vaccination with shots that are only approved for emergency use, as coronavirus vaccines currently are.
Department lawyers wrote that the law in question requires individuals be informed of their “option to accept or refuse administration” of an emergency use vaccine or drug. But that requirement does not prohibit employers from mandating vaccination as “a condition of employment.”
The same reasoning applies to universities, school districts, or other entities potentially requiring COVID-19 vaccines, the lawyers added. Available evidence overwhelmingly shows the vaccines are safe and effective.
The Justice Department opinion followed earlier guidance from the federal Equal Employment Opportunity Commission that federal laws prohibiting discrimination in the workplace “do not prevent an employer from requiring all employees physically entering the workplace to be vaccinated for COVID-19.”
The EEOC listed some cases in which employers must offer exemptions. People who have a medical or religious reason can be accommodated through alternative measures. Those can include getting tested weekly, wearing masks while in the office, or working remotely.
Who is requiring the vaccine?
The Department of Veterans Affairs on Monday became the first major federal agency to require health care workers to get COVID-19 vaccine. Also on Monday, the state of California said it will require millions of health care workers and state employees to show proof of a COVID-19 vaccination or get tested weekly. And New York City will require all of its municipal workers — including teachers and police officers — to get coronavirus vaccines by mid-September or face weekly testing.
Raising expectations, Biden said Tuesday that a vaccine requirement for all federal workers is “under consideration right now.” He promised to lay out next steps for his administration’s stalled vaccination campaign later this week.
“The more we learn about this virus and the delta variation, the more we have to be worried and concerned,” the president said, adding that if another 100 million Americans were vaccinated “we’d be in a very different world.”
The push for vaccines has been piecemeal in the corporate world. Delta and United airlines are requiring new employees to show proof of vaccination. Goldman Sachs is requiring its employees to disclose their vaccination status, but is not requiring staffers to be vaccinated.
Michelle S. Strowhiro, an employment adviser and lawyer at McDermott Will & Emery, said there are costs for employers requiring vaccines. There’s the administrative burden of tracking compliance and managing exemption requests. Claims of discrimination could also arise.
But ultimately, the rise in the delta variant and breakthrough cases in fully vaccinated people has “served as extra motivation for employers to take a stronger stand on vaccination generally,” she said. “Employers are going to be looking toward vaccine mandates more and more.”
Alternative to mandates
Instead of requiring vaccines, some companies are trying to entice workers by offering cash bonuses, paid time off and other rewards. Walmart, for example, is offering a $75 bonus for employees who provide proof they were vaccinated. Amazon is giving workers an $80 bonus if they show proof of vaccination and new hires get $100 if they’re vaccinated.
Options for employees
Most employers are likely to give workers some options if they don’t want to take the vaccine. For example, New York City and California have imposed what’s being called a “soft mandate” — workers who don’t want to get vaccinated can get tested weekly instead.
If an employer does set a hard requirement, employees can ask for an exemption for medical or religious reasons. Then, under EEOC civil rights rules, the employer must provide “reasonable accommodation that does not pose an undue hardship on the operation of the employer’s business.” Some alternatives could include wearing a face mask at work, social distancing, working a modified shift, COVID-19 testing or the option to work remotely, or even offering a reassignment.
Will mandates turn the tide?
It’s too early to tell.
“Every employer that decides to mandate vaccination paves the way for other employers to feel safer doing so,” said Masling.
A recent legal decision may help move the needle. In June, a federal district court in Texas rejected an attempt by medical workers to challenge the legality of Houston Methodist Hospital’s vaccine mandate. The court found such a requirement in line with public policy.
Dorit Reiss, a law professor who specializes in vaccine policies at the University of California Hastings College of the Law, said “more businesses will have confidence they can mandate the vaccine.”
She believes most companies will go the route of a soft mandate, with alternatives for employees who remain reluctant.
“I think it’s a reasonable option,” she said.
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