Employers can legally require COVID vaccines—but will they?

Mandating inoculation may allow some companies to safely reopen, experts say.
By: | December 21, 2020 • 6 min read
(Photo by Mario Tama/Getty Images)

As COVID-19 vaccines are approved and begin to roll out across the country, employers are asking one question: Should—and could—we make the vaccine mandatory for employees?

The bottom line is that employers can require employees to get immunized with the coronavirus vaccine, with some accommodation exceptions. In new guidance released last week, the Employment Opportunity Commission said employers can require that employees get vaccinated as a condition of going to work. However, they must be prepared to exempt employees with disabilities and religious objections. In those cases, an employer must offer a reasonable accommodation to the employee—such as working remotely or being reassigned—as long as the accommodation doesn’t cause “undue hardship” for the employer.

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“They have to check with their state and deal with the accommodation issues, but in broad terms, yes, employers can mandate it,” says Shannon Farmer, a labor and employment lawyer at Philadelphia-based Ballard Spahr who is advising employers on the COVID vaccine.

Related: 4 takeaways for HR from the EEOC guidance on COVID-19 vaccines

So employers can legally mandate the new vaccinations—but will they? And should they? Experts say that depends.

“Employers should really be treading carefully if they are going down the route of mandating vaccinations among their employees,” says Melissa Gonzalez Boyce, an attorney and legal editor at XpertHR. “They have to be very aware that many employees may be objecting for several reasons—a disability, a pregnancy or religious objections.”

Employee concerns and reluctance over the vaccine certainly complicate the issue for employers. Nearly a quarter (24%) of employees say they will not get the vaccine, according to a survey of more than 2,000 employees from the Employee Benefit Research Institute and independent research firm Greenwald Research. Nine percent say it depends, and 12% are still unsure about their vaccination decision. COVID vaccine-related lawsuits are expected against employers that require their employees to have proof of a COVID vaccine before allowing them to return to the workplace (although it is legally allowed in most cases).

Related: Many employees unwilling, unsure about getting COVID-19 vaccines

Employers may want to take the pulse of their workforce and consider their demographics and risk factors—as well as their previous response to COVID-related safety measures—to see if it’s worth it to require the vaccine.

“[Employers] should look at [what happened] when they implemented health and safety protocols in the last few months,” Gonzalez Boyce says. “For example, if a large segment of your workforce resisted wearing a mask or resisted social distancing or any of those protocols that employers tried to implement, that should give a clear indication as to where your workforce falls on the vaccine front.”

Some employers may have more headaches in mandating inoculation than others. Small businesses, for instance, may have just one or two HR people dealing with the many issues that go along with requiring vaccines, including tracking who is getting vaccinated and when. Multistate employers have to consider legalities and requirements that may arise and vary in the different states they’re in. And although some organizations may think about distributing vaccines at an onsite clinic or location, that can be a “logistical nightmare,” Gonzalez Boyce says, when it comes to social distancing, training personnel to handle the vaccine and requiring strict adherence with vaccine temperatures and timelines.

For those reasons, Gonzalez Boyce thinks most organizations will lean on managing a voluntary vaccine policy rather than mandating one but will “very strongly encourage” workers to get it. “It’s a public health emergency, and it’s a measure to protect the community as a whole,” she says. “So my recommendation is to educate employees that it’s safe and that it’s backed by science—while also not taking a social or political stance. Employers may want to have an educational campaign with emails, mailers and so on.”

Related: HR’s next big job: Convincing employees to get COVID vaccines

The education component of COVID-19 vaccines has already been a talking point for employers, despite the fact that vaccines are not widely available for employees—and likely won’t be for months. But starting to communicate information about the vaccine—and its benefits—is vital, experts say. Communicating factual information about the vaccines to employees, including about safety and efficacy, and citing medical experts and organizations, like the CDC, can help convince employees to get the vaccine. Tying the vaccine into wellness programs and offering employees incentives for taking it may also drive rates up.

Still, many employers are expected to go further by requiring the vaccine for their employees. That’s because, simply put, vaccines give many employers a way out of the COVID-19 madness—it provides them a way to safely bring back employees to the office, get back to business and turn a profit.

Justin Holland, CEO and founder of HealthJoy, a benefits company that works with some 700 employers, think scores of employers will “absolutely” require employees to get vaccinated. “You’re never going to have a situation where you have employees in the office without a vaccine,” Holland says. “Imagine the amount of employees who could say, ‘I got COVID at work’—who’s going to want to deal with that?”

Polling, too, suggests companies are considering mandating vaccination: A survey of current and recent CEOs of major companies during a virtual summit by the Yale Chief Executive Leadership Institute found that 72% of them signaled an openness to vaccine mandates. Similarly, more than half of employees say they think employers should require non-remote employees to receive a COVID-19 vaccine, according to a survey of 2,000 adults from Sykes, an outsourcing firm. That same poll found that of respondents who said they don’t plan to receive a vaccine, a significant number of them say they would do so if their employer required it.

See all of HRE’s COVID-19 coverage here.

While employers that have been able to shift work remotely with ease might not see as much of a need to require workers to get vaccinated, industries that rely on onsite work and employees—like manufacturing, hospitality, food service and more—will likely consider requiring vaccines for their employees.

“If employees can’t work remotely, they need to do everything possible to get them back and get customers back in the door,” Farmer says. “If you’re in hospitality or the entertainment industry, if this is the way to get your business open again when you’ve had to be closed, you’re going to do everything you can to get it open.” There may also be an appeal for patrons if a company says it mandated vaccines for all of its workers, she adds.

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Many company leaders will likely wait a few weeks, or months more, to see how the vaccine rollouts continue to go and how acceptance rates are before making a companywide decision for employees. Although it will likely be wait-and-see for many organizations—and as many employers see what their peers do—experts caution it’s best to decide sooner than later. Doing so will give both employees and organizations ample time to prepare, Farmer says.

“It’s important to have these policies in the new year to say, ‘When vaccines become widely available, we are going to require them,’ so people can have time, for example, to discuss accommodation requests, and people who are unwilling can decide if they don’t want to work for the company,” she says. “It’s planning time for everybody to lay out their expectations.”

Kathryn Mayer is HRE’s benefits editor and chair of the Health & Benefits Leadership Conference. She has covered benefits for the better part of a decade, and her stories have won multiple awards, including a Jesse H. Neal Award and honors from the American Society of Business Publication Editors and the National Federation of Press Women. She holds bachelor’s and master’s degrees from the University of Denver. She can be reached at kmayer@lrp.com.

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