The risks employers face in mandating the vaccine for staff

Written on Mar 04, 2021

By Jessica Salerno, OSCPA senior content manager

As more COVID-19 vaccines become available, some employers are considering whether they can require their staff to be vaccinated before returning to the workplace in person. 

Jonathan Hyman

“It is legal to mandate that employees get the vaccine subject to a couple of pretty big exceptions,” said Jonathan Hyman, a partner in labor and employment group at Meyers, Roman, Friedberg & Lewis, and the lead of the firm’s coronavirus response team. 

Those exceptions are two Equal Employment Opportunity laws that require employers to make reasonable accommodation for employees in certain circumstances. One is the Americans with Disabilities Act, and the other is the religious discrimination protection afforded by Title VII of the Civil Rights Act of 1964 prohibiting discrimination based on race, color, religion, gender, pregnancy or national origin. 

“In both of those cases, if an employee comes to an employer and says, ‘I understand you're mandating vaccines, but I have an underlying physical or mental impairment, that for which the vaccine is contraindicated,’ or employee says, ‘I have a sincerely held religious belief, practice, or observance that does not allow me to get a vaccine,’ an employer, in each of those cases has to consider whether it can make a reasonable accommodation through an exception to its mandatory vaccination policy,” Hyman said. 

Most companies he’s spoken to are making the vaccine optional for employees, and that’s the advice he’s given to his clients. 

Having a mandatory policy means you will have to make those two considerations, Hyman said. It also means you could unfairly impact Black employees – whom studies have shown have a historic distrust of forced vaccinations – and that could potentially raise legal issues. 

“If you have a mandatory policy, I think you also risk alienating some of your employees who are going to get the vaccine regardless, because they're going to view it as too intrusive,” he said. “And you may lose some of them as employees just because they're offended by you mandating what they do with their bodies from a medical perspective.” 

For the most part, employees also cannot refuse to come back to work if some co-workers remain unvaccinated, Hyman said. Although he understands people’s hesitancy, he reminded employers to try to be as flexible as they can. 

“Someone saying ‘I'm not going to come back until everyone is vaccinated’ is not a valid excuse, unless they have an underlying medical condition that an employer has to accommodate under the ADA,” he said. “That would suggest that remote work might be a feasible reasonable accommodation for that person under the circumstances.” 

Some employers are asking for proof of vaccination before staff can come back to work, which Hyman said is legal, as there is no law or regulation that precludes an employer from requiring proof of vaccination. The caveat to that is if an employee says they haven’t been vaccinated yet and the employer questions this, the employees’ answer could potentially reveal protected medical information. 

“I'm encouraging companies to be flexible with their time off for employees surrounding the vaccine so that we're not creating artificial barriers to employees not opting not to get the shot when they can,” he said.