People are asking a lot of questions about a potential COVID-19 vaccine. Are the leading candidates safe and effective? When will one get approved? When will a COVID-19 vaccine be available to the public?
Not everyone is in a hurry, though. According to a summer Gallup poll, more than a third of employed Americans say they wouldn’t get a vaccine even if it was free and FDA-approved.
If you’re worried about getting the vaccine, you’re not alone. A lot of people are concerned that they might have to get it before they’re ready, especially if their employer mandates it. But is that allowed?
Are vaccine mandates legal?
The question of mandated vaccinations has come up before, mostly in the context of the flu shot. The position of the Occupational Safety and Health Administration (OSHA) is that an employer can legally require its employees to get a vaccination, but not without certain caveats.
For instance, OSHA warns that if an employee refuses vaccination because they believe they may have an adverse reaction, whistleblower laws may protect them from retaliation. That could make vaccine mandates difficult to enforce.
What about exemptions?
The Equal Employment Opportunity Commission (EEOC) has already confirmed that if an employee has a recognized disability, or if their religious beliefs and practices prevent them from getting vaccinated, they may claim exemptions and reasonable accommodations from any COVID-19 vaccine mandates.
There is an “unless,” though, and it’s an important one to consider. In situations involving disability or religious objection, an employer must accommodate an employee’s aversion to vaccination unless it prevents an undue hardship to the business.
What are undue hardships?
Undue hardship impairs a business’s operations at more than a minimal level. Under the ADA, undue hardship means that the employer would incur a “significant difficulty or expense” in accommodating the request.
Under the Civil Rights Act, though, expenses don’t have to be as financially significant. The Supreme Court has ruled that accommodations may present an undue hardship if they present more than a trivial cost.
This means that you could feasibly claim a medical or religious exemption to a vaccine mandate, but your employer could argue that it poses a hardship. For example, a business could suggest that an unvaccinated employee poses a risk to vulnerable customers or clients. If it would be too expensive or logistically unfeasible to allow that employee to work remotely, the employer could claim undue hardship.
The short answer is yes, employers can require COVID-19 vaccines, but many won’t be in a hurry to do so. Mandates may add too much conflict to the workplace, and if any safety concerns arise, the employer could end up in a difficult position.
Those concerns may lead employers to strongly encourage a vaccine instead of requiring it — at first, anyway. This might involve distributing educational materials about the benefits of the vaccine and possibly even hosting on-site vaccination events.
The bottom line is, while your employer potentially could require you to get a vaccine, many will choose not to, at least not right away. And even if a mandate is in place, there are several ways you can exempt yourself. If you have specific concerns, contact a lawyer.