As Covid vaccines reach or near approval, some Americans are wary, citing the rushed timeline as a reason to delay getting the shot. But eventually, even the dwindling number of Americans saying they don’t plan to get the injection may have to choose between abstaining from the vaccine and keeping their jobs.
ClearHealthCosts spoke with four employment lawyers about whether or not it’s legal for employers to require workers to get vaccinated and what other options bosses have for keeping their workplaces safe from Covid.
Can my boss require the vaccine?
Dr. Dorit Reiss, a professor of law at the University of California, Hastings, said that, in short, companies can require vaccination as a condition of employment, with a few exceptions.
“Generally, employers can enforce health and safety requirements, and asking you to get a vaccine is a health and safety requirement,” Reiss said in a phone interview. “However there are some limits.”
The two main legal limits come from anti-discrimination law, and they give workers an out if they have a qualifying medical condition or a religious objection to being vaccinated.
The Americans with Disabilities Act protects people with disabilities — that includes a medical reason for avoiding the vaccine — and the Civil Rights Act of 1964 bars discrimination in the workplace on several grounds, including religion. Both laws require employers to give these workers an accommodation.
But getting an accommodation isn’t necessarily easy and it does not mean simply coming in to work unvaccinated. The employer is still responsible for keeping the workplace safe, both for other employees as well as customers.
“It might mean that the employee has to wear PPE that other people don’t have to. Or the employee might have to do remote work even after everybody else comes back,” Reiss said.
Tom Spiggle, an employment lawyer at the Spiggle Law Firm in Arlington, Va., said that medical accommodations in particular might require a worker to disclose some personal information.
“Generally speaking an employer cannot ask you about medical conditions,” Spiggle said in a phone interview. “Under the ADA, there are exceptions by which the employer can ask for records.”
Employers can require the vaccine, but will they?
Workplaces may be within their rights to require employees to get vaccinated, but Jan E. Hensel, a partner at Dinsmore law firm in Columbus, Ohio, who works exclusively with employers, said she suspects that many companies will opt for a more moderate approach.
“I can see employers really trying to get creative and come up with other perks to reward their employees for taking the vaccine or other desired behaviors,” Hensel said in a phone interview. “It’s more of a win-win, than having the employee feel like they’re being mandated to do something they don’t want to do.”
Hensel said some of her clients are taking more of a “carrot approach” by offering bonuses to employees to get vaccinated.
Reiss said she does not expect many companies to explicitly force the vaccine on workers either.
“If I had a crystal ball, I would say that we won’t have any widespread mandates, only narrow mandates,” she said. “For example, mandates for corrections officers or mandates for certain healthcare workers.”
Spiggle also said he expects workplace vaccination requirements to vary significantly by industry.
“I think there is going to be a wide range or policies dealing with vaccines in a way that we haven’t seen before,” Spiggle said.
He expects that while some companies or industries may insist on employees getting vaccinated, others will opt to issue recommendations, leaving the choice in the worker’s hands.
“Look, I think employers are trying to do the right thing. They’ve got a workforce they want to protect,” he said. “At the same time, employers aren’t looking for sticky legal issues either.”
Wednesday, the U.S. Equal Employment Opportunity Commission updated its recommendations for complying with workplace anti-discrimination laws in light of the new vaccine, including how to respond when a worker cannot get the vaccine for medical or religious reasons. In both cases, the document states that the employer may not automatically terminate the worker and recommends implementing safe, alternative accommodations instead.
Worst case scenario: What if I get sick or injured from the vaccine?
While initial studies have found that the rate of serious injury or illness for the Pfizer vaccine was “low,” employees without legal exemptions may still worry about the possibility.
“Right now, under the worker’s comp doctrine, it seems pretty clear to me that if there was a complication from a vaccine that an employer was requiring an employee to take, the complication would be compensable,” Duff said in a phone interview.
While workers’ comp law can vary by state, Duff said that in most cases, if a worker gets sick enough from a mandated vaccine that they have to miss work for a week or more, they would be entitled to receive about two-thirds of their salary as well as medical benefits while they are out.
But while that may be the case now, Duff said that could always change.
“Just because that’s the law now, doesn’t mean that the legislature next week couldn’t change the law to say ‘now we’re now we’re going to say that workers comp doesn’t cover this,’” he said. “There’s really nothing to prevent a state legislature from doing something like that.”
Duff also said regular workers’ compensation law would not apply if the government were to require employers to mandate the vaccine.
“If an employer is, in essence compelled by the state to require the vaccination, then the question becomes whether it’s actually the employer who is making that a condition of employment,” Duff said.
Federal and state governments have no such requirements for Covid vaccines now, but enacting a rule like this would shield the employer from responsibility for an injury and damage a workers’ comp claim.
What you can do
To learn more about the history and precedent of workers’ compensation coverage for vaccine injury, visit Duff’s blog on the subject.
To learn more about what the Centers for Disease Control are doing to ensure the safety of the Covid vaccines and monitor adverse events, visit their vaccine safety homepage here.
To learn more about employment law or to search for an attorney, visit the National Employment Lawyers Association.