Is It Legal for My Employer to Require Me to Get the Vaccine?

Elemental published an extremely thorough guide to the Covid-19 vaccine, answering every possible question. The FAQ will be updated and added to as the vaccine process continues. The Blog will be featuring a few questions throughout the month.

Is it legal for my employer to require me to get the vaccine?

Generally speaking, employers have wide latitude in requiring working conditions in the interest of health and safety, and courts generally do not second guess an employer’s judgment, including the use of vaccination requirements, according to Dorit Reiss, a professor of law at the University of California Hastings Law School, who specializes in vaccination law.

But there are several caveats to an employer mandate of Covid-19 vaccination. First, it’s not clear whether businesses can legally require vaccination when the vaccine has only an EUA [emergency use authorization]. The law’s language is ambiguous, Reiss said, and employers may be unable to mandate vaccination until after vaccines have received full approval from the Food and Drug Adminstration (FDA). Even at that point, a union or the Americans with Disabilities Act (ADA) could come into play if an employer wants to require workers to get vaccinated.

“If you have a unionized workforce and there’s a collective bargaining agreement, the collective bargaining agreement may limit the ability of employers to require vaccination unilaterally,” Reiss said. “It depends on what the collective bargaining agreement is.”

Second, if someone has a disability, including a medical condition that doesn’t allow them to get vaccinated, then employers are required to provide “reasonable accommodations” unless doing so is a substantial burden, which has a high bar, she said. But a reasonable accommodation doesn’t necessarily mean the employee can work as usual without being vaccinated.

“A reasonable accommodation could mean those employees only work remotely, or that they need to wear a mask all the time, or other things that the courts would find reasonable,” Reiss said. “It doesn’t have to be what the employee actually wants.”

Even then, employers may not need to provide reasonable accommodation if the employee is a direct threat to others, and Covid-19 is already considered a direct threat to others right now. Six months from now, however, it may no longer be considered a direct threat, Reiss said, and she would advise any employer to try to offer reasonable accommodations regardless. “They don’t deserve to be put in a position of losing their job or ruining their health if there’s a real medical contraindication,” she said.

Some petitioners who have challenged past vaccine mandates, such as nurses who refused flu vaccines required by their hospital, have argued such mandates violate workers’ rights, but the counter to that, Reiss said, is that other workers deserve a safe workplace. “The fact that some workers may not want to get the vaccine may put some of their co-workers at risk, so what about that right?” she said.

Finally, for those who have a sincere religious belief that conflicts with a rule, including a requirement to get a vaccine, the Civil Rights Act of 1964 requires the employer to accommodate the employer unless it’s an “undue burden.” Again, the accommodation does not have to be what the worker wants, Reiss said. “It can be another reasonable measure that allows the worker to work while reducing risk,” she said.

Until any of the vaccines have received full FDA approval, however, this question is unlikely to come up.

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