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If a COVID-19 vaccine becomes available, could your employer require you to be inoculated as a condition of your employment?
The short answer is yes.
Employers do have the power to do that and so does the government – but whether the state or the private sector will exercise that right is an open question.
With a vaccine at least months away, more than one-third of Americans are skittish at best about getting a COVID-19 shot (or shots). Given this, the government might not want to come across as Big Brother here in the Land of the Free. Government may instead find ways to encourage people to be vaccinated.
Employers, however, face a lesser obstacle. They have a vested interest in keeping their workplaces safe; so when a vaccine comes along, they could require their employees to make a choice: Be inoculated or say goodbye to your job.
Employers' power to mandate inoculations comes from the U.S. Labor Department's Occupational Safety & Health Administration (OSHA) and the Equal Employment Opportunity Commission (EEOC).
OSHA's position was spelled out in 2009 during the H1N1 (“swine flu") outbreak in response to an inquiry from Ohio Congresswoman Marcy Kaptur. OSHA said that while it doesn't require employees to be vaccinated, employers may mandate inoculations. “It is important to note," OSHA added, “that employees need to be properly informed of the benefits of vaccinations."
The EEOC issued its guidance on employee vaccinations on March 21 of this year, during the pandemic's early days in the U.S. The EEOC restricted its guidance to employers covered by the Americans With Disabilities Act (ADA) and Title VII of the Civil Rights Act – meaning those with 15 or more employees—and concluded that they should “encourage" employees to be vaccinated.
The EEOC noted, however, that under the ADA, an employee can be exempted if they have a disability that prevents them from taking the vaccine, and under Title VII they can if they can demonstrate a “sincerely held religious belief, practice, or observance."
While the EEOC noted those possible exemptions, it also said COVID-19 poses a special risk that gives employers greater latitude in what it can require of employees to maintain safe workplaces. The term of art is “direct threat," which means a significant risk that “cannot be eliminated or reduced by reasonable accommodation."
In other words, COVID-19 poses a “direct threat" that would make it difficult for workers to refuse a vaccination on ADA or Title VII grounds and expect to keep their jobs.
Employers might still be nervous about a discrimination lawsuit if they issue a strict vaccination policy. However, Baruch College law professor Debbie Kaminer wrote that under Title VII, employers are not required to provide accommodation if doing so involves more than minimal cost – and with the presence of COVID-19, they run the risk of far more than minimal cost.
“Certainly," Kaminer wrote, “in the midst of one of the worst public health and financial crises in recent history, there is a significant cost to having an unimmunized workforce."
Summing up then, it's clear that employers do have a legal right to require you to get a COVID-19 vaccination in order to keep your job. Employers have significant legal standing to require vaccinations and it may be wise for them to begin explaining this reality to their employees. Then again, they do have plenty of time — at least several months.