What Employers Can Require With the Approved Covid-19 Vaccine

The Food and Drug Administration’s full approval for a Covid-19 vaccine—the Pfizer-BioNTech vaccine—has introduced a new Covid-19 calculus for American employers and workers.

Vaccines are readily available now, but as of Sept. 8, only about 62.7% of the U.S. population, and 73.3% of those eligible, have gotten at least one jab. These rates, in conjunction with the more deadly and transmissible deltavariant, have slowed plans to return to business-as-(more)-usual.

As employee-side lawyers, we comment here on some questions frequently posed by employees.

Can Employers Require the Covid-19 Vaccination?

Yes. Earlier this summer, many employers—including major companies, hospitals, and law firms, (including our own)—directed employees to get vaccinated.

Now that the Pfizer vaccine has full FDA approval, and other Covid-19 vaccines’ approvals are likely forthcoming, businesses, state, and local governments, and even the military have greenlit new or more comprehensive vaccine mandates in recent days.

In contrast, Texas, like other states, responded by gubernatorial edict banning state and local government employers from directing public sector workers to get inoculated against Covid-19.

Are Mandatory Immunizations Legal?

The U.S. Equal Employment Opportunity Commission and the Department of Justice clarified that federal law allows vaccine requirements, even for options with only emergency use authorization (EUA).

While the U.S. Supreme Court has not yet weighed in, the legality of mandatory immunization during a public health crisis is well-established, dating back over a century. Vaccine requirements are nothing new for many aspects of American life, such as schooling and travel. Similarly familiar are lawsuits challenging these directives.

But litigation against employers’ Covid-19 vaccine mandates have so far failed to gain traction, and the U.S. Supreme Court to-date has elected not to intervene. That courts have rejected arguments questioning mandates’ validity in light of the EUA further underscore that such measures are likely to continue standing with the arrival of full approval.

The legality of requiring Covid-19 inoculation is particularly clear in the employment context, given the nationwide prevalence of at-will working arrangements and the autonomy of private employers. And requiring proof of vaccination does not violate HIPAA.

Are Exemptions to Covid-19 Vaccine Mandates Available?

Yes, in some circumstances. Employers’ policies must comport with other civil rights laws—meaning, in short, that employees with medical risks or sincerely held religious objections may be entitled to certain exemptions.

But these exceptions to a broader rule should be understood narrowly, as medical contraindications are rare and employers confronted with religious exemption requests can deny them if they would pose undue hardship. Whether religious exemptions are legally necessary remains to be seen, and a recent lawsuit challenging Maine’s vaccine mandate for state health-care workers raises those questions.

What Can Employers Do If Employees Refuse Vaccination?

The consequences for not being immunized may vary depending on the job and the reason. Employees are likely entitled to greater job protection if they are unvaccinated for a religious or medically supported reason rather than a personal or political one.

Termination is possible. At-will employees are more susceptible to termination than those whose discharge may only be for cause.

Employees may be more likely to keep their jobs if they can be performed remotely, a category of employees that skews white-collar. (Ironically, businesses that employ such workers have been more willing to enact mandates.)

In contrast, if the work involves vulnerable populations—such as children too young for vaccine eligibility, the sick or elderly, or the immunocompromised who remain at severe risk despite vaccination—employees may find it more difficult to remain unvaccinated and employed.

But nuances remain for courts and businesses to flesh out. Meanwhile, employers are adopting a variety of approaches short of termination.

Some continue to offer incentives to get vaccinated. Others impose masking and/or frequent testing requirements. At least one employer will charge those who refuse the jab an additional monthly health insurance fee, due to high insurance costs associated with Covid-19-related hospital stays.

If An Employer Is Not Requiring Vaccines, Is An Employee Without Recourse?

That depends. If an employee is concerned about breakthrough cases because of their own underlying health condition, that employee may be entitled to an accommodation under the Americans with Disabilities Act (ADA) and related state and local laws.

If an accommodation is requested, the employer is required to engage with the employee through an “interactive process” to determine whether an accommodation would allow the employee to complete essential job functions without overburdening the employer. Reasonable accommodations can take a variety of forms, including telework, private workspaces, and masking requirements. (And policies proactively banning masks are coming under fire from disability rights advocates in courts.)

If the concern stems from a loved one’s disability, federal law does not require employers to provide accommodations. But they may nevertheless be open to doing so. An employer might also violate disability laws if it treats such an employee differently than co-workers because of a relationship to someone with a disability, or because the employee made a reasonable request. The ADA and numerous state laws prohibit disparate treatment and retaliation.

Employees also can also take vacation or sick leave if they have it. In addition, the federal Family Medical Leave Act and many states offer certain workers family leave (paid or unpaid), including for caregiving.

This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.

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Rebecca Ojserkis and Whittney Barth are associates at Sanford Heisler Sharp LLP. They represent clients in employment discrimination matters, and other types of civil rights litigation.

Kate Mueting is a partner and co-chair of the Discrimination and Harassment Practice Group at Sanford Heisler Sharp LLP.