Are Employers Allowed to Mandate Covid Vaccinations?

“It is only through hard conversations followed by meaningful action that we get anywhere.  So have the hard conversations.” — Dr. Krista Scott-Dixon, Director of Curriculum at Precision Nutrition.

I know this is a hot, controversial subject right now.  Before we get too far, you should know this is not advice on whether or not you should get vaccinated.  This is not about whether or not your company should implement a vaccine mandate.  This is simply going to clarify whether or not you can.  We often post articles guiding you in things you should or shouldn’t do and things you can and can’t do.  Like our article outlining questions you can and can’t ask in an interview.  This article isn’t intended to ruffle feathers or upset anyone.  We recognize that it’s nearly impossible to write anything addressing this topic without doing so.  The purpose of this article is to answer the question: are employers allowed to mandate covid vaccinations?

Definition

Before we get into whether or not you are allowed to mandate covid vaccinations, let’s first define what “mandate” means.  According to Dictionary.com, a mandate is “a command or authorization to act in a particular way on a public issue given by the electorate to its representative”.  It also means “an authoritative order or command”.

A loud argument being made against this is that it takes away an individual’s freedom to make medical decisions for themselves.  It’s also being argued that it strips away certain rights.  We’re going to stay focused on the workplace.  In this particular case, an individual does not have a guaranteed right to work.  They have rights to not be discriminated against.  They have the right to “reasonable accommodations” based on medical conditions or religious beliefs. (We’ll address those later.)  And they have the right to expect a safe workspace and harassment-free environment.  

An individual still has the right to choose to follow company policies.  Let’s say you work in a restaurant and there is an e coli outbreak from spinach.  You are advised to throw out the spinach.  No one from the FDA is going to storm the restaurant and do it for you.  But, if you choose to serve the spinach and people get sick as a result, your decision will have repercussions.  The same goes with getting a vaccine.  If getting vaccinated is a requirement to work for an employer, neither the employer nor the government will hold an individual down and force a vaccine into someone’s arm.  But, choosing not to adhere to the company’s rules also means choosing to forfeit the privilege of working there.  Employees might not like the options, but they still have a choice.

Precedent

Food handlers are required to wear gloves and wash hands regularly.  These policies have been implemented based on scientific research showing its efficacy at keeping people safe.  If new data showed that a certain pair of gloves were ineffective but a different grade was effective, the protocol would change.  Construction workers are required to wear hard hats.  No one is allowed to smoke on airplanes, indoor restaurants, or bars.  Speed limits are set on roads and seat belt laws have been implemented.  More recently, laws have been written to include not texting while driving.  This is recent because cell phones are relatively new.  As is Covid-19.

While many have never been through a pandemic in their lifetime, viruses and vaccines are nothing new.  In fact, there very likely would not even be a United States of America without vaccines.  George Washington mandated vaccines for his soldiers against smallpox.   Children receive dozens of vaccines between birth and 18 years old in order to attend school and other functions in society.  If you plan to join the military, you can expect even more shots during bootcamp. You’ll receive even more depending on where you are deployed. 

 The Federal Mandate

In short, yes.  Yes, you as an employer are allowed to require your staff to be fully vaccinated.  President Biden has implemented a Federal mandate that includes several points:

• All employers with 100 or more employees must ensure their workers are vaccinated or tested weekly.
• All Federal workers and contractors who do business with the Federal Government must be vaccinated.
• Health Care workers at Medicare and Medicaid Hospitals must be vaccinated.
• Large entertainment venues are strongly urged to require proof of vaccination for entry.
• Employers are required to provide paid time off for employees to get vaccinated.

The Equal Employment Opportunity Commission (EEOC) updated their informal guidance regarding the employer’s ability to require vaccinations. “An employer may require all employees physically entering the workplace to be vaccinated against COVID-19, subject to the reasonable accommodation provisions of Title VII (related to religion and pregnancy) and the Americans with Disabilities Act.”

In another article from The National Law Review, attorneys Richard Rainey and Mark Henriques pointed out that the Supreme Court has already upheld any objections lodged against businesses implementation mandates.

Religious or Medical Exemptions

Many wanting to avoid the Covid Vaccine are applying for religious or medical exemptions.  Regardless of the validity of the request, there are things you should know about what the exemptions mean.  It really comes down to one very important term: “reasonable accommodation”.  You are required to honor a religious or medical exemption so long as the accommodations you must make are “reasonable”.  

Let’s say a food server in a restaurant injures their shoulder and cannot carry food.  They can temporarily assume hosting duties while their shoulder heals.  It is also reasonable for you to not schedule employees on Saturdays or Sundays so they may attend religious services.  However, someone working for the NFL might not consider having Sundays off as “reasonable” since that is typically game day.

It depends on the nature of the work performed at your business.  It is difficult to imagine a scenario where a food service worker could reasonably perform any of the duties safely without posing a health risk to co-workers or patrons.  Covid is a virus transmitted by respiratory droplets or from touching a surface that has the virus on it.  You can’t catch an injured shoulder from a co-worker.  That’s a huge distinction when considering what constitutes a “reasonable accommodation” in the workplace.  Each business is different and there are often many different duties within each business. 

There is no hard and fast rule as to what defines “reasonable accommodation”.  Ultimately, it is up to you, the employer, to determine if an unvaccinated worker poses too great a health risk to other employees or customers under any circumstances.  A religious or medical exemption does not guarantee the employee can continue working as normal.  If “reasonable accommodations” cannot be made, the employee can still be terminated.

Are Employers Allowed to Mandate Covid Vaccinations?

There are going to be states and businesses that attempt to contest the Federal mandate.  Again, the Supreme Court has already upheld the rights of individual businesses and institutions to enforce their own vaccine mandates.  They have done so even before the Federal one goes into effect.  The question posed for this particular article, however, was whether or not employers are allowed to mandate Covid vaccinations.  And the answer, legally, is yes.