Employers have legal right to mandate shots
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 requirements into place and it’s getting attention. But what happens if workers refuse?
Federal 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.
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.