Can Your Employer Mandate COVID-19 Vaccines?

Almost half of Americans have had at least one dose of the COVID-19 vaccine. The most recent data from the Centers for Disease Control and Prevention (CDC) shows that around 40% of the United States population is fully vaccinated. As a result, vaccine supply is now far surpassing demand.

Federal and state governments continue to urge citizens to get vaccinated, which will help move the nation toward herd immunity.

With that ultimate goal in mind, some employers are mandating that employees get vaccinated, raising questions about whether it is legal for them to do so.

While vaccine mandates can be legal, there are many factors to consider—including several pitfalls to the practice.

Legal—If Necessary

Nevada Assemblyman David Orentlicher, MD, JD, tells Verywell that vaccine mandates are legal and have precedent according to the Equal Employment Opportunity Commission (EEOC).

COVID-19 isn't the first time that the issue of vaccine mandates has come up; for example, they have also been discussed for flu vaccines.

Demonstrating Need

For a vaccine mandate to be legal, there must be a need for employees to be vaccinated. As more businesses are adapting to remote work and the setup continues to grow in popularity even as the pandemic subsides, there may not necessarily be a need for employees to get vaccinated.

In some industries, though, the need for contact with other employees or customers will ultimately determine whether a vaccine mandate would be legal or not.

"If someone works from home, they cannot be required to be vaccinated," Orentlicher says. "For people interacting with customers, patients, or coworkers, they could potentially put patients and coworkers at risk."

Reasonable Accommodations

Even in workplaces where there is physical space shared with customers or coworkers, exceptions are allowable for certain situations such as medical needs (like a compromised immune system) or religious beliefs.

Employers are required to make reasonable accommodations for their employees that cannot or will not be vaccinated within those boundaries.

"A reasonable accommodation could be requiring them to wear an N95 mask or to move them to a desk job rather than a personal contact job," Orentlicher says. "But it depends on the workplace. If there's nothing suitable, you don't have to pay them to do nothing—that would be an unreasonable accommodation for the employer."

What Counts for Exemption?

Is merely disagreeing with or distrusting a vaccine enough to exempt a person from an employer mandate? The short answer is no—Orentlicher says that politics do not constitute reasonable cause for exemption.

"Employees have to show that it's a sincere religious belief, but courts are reluctant to get into how sincere it is," Orentlicher says.

In general, people objecting on religious grounds must have an established religion that requires a sacred text or other hallmarks of religion.

Mandates Require Accommodation

Diana Dix, a senior human resources risk advisor at Cavignac, tells Verywell that if employers decide to mandate a vaccine, they must make sure that their employees have the time and resources to receive it.

"When companies enact a vaccination policy, it must become an 'employee required task,' Dix says. "Employers must compensate employees for time spent completing the task including paid sick time, time spent waiting in lines, even mileage, transportation, and in some cases hospitalization if it is a direct result of the vaccination policy."

While employers must make sure their employees can take time off to get the vaccine, the EEOC has also said that employers should avoid providing the vaccine to employees themselves, as this could violate confidentiality restraints surrounding the employees' medical status.

Incentives Can Be More Effective

Avoiding the pitfalls of legal blowback from vaccine mandates has led some employers to incentivize employees to get the vaccine rather than mandate it.

In its most recently updated guidance, the EEOC stated that employers can incentivize employees to voluntarily show documentation of a third-party vaccination as long as the medical information remains confidential in cooperation with standards set forth by the Americans with Disabilities Act.

If employers offer the vaccine themselves—for example, health employers or those that contract with a pharmacy or clinic to administer the vaccine—they can offer an incentive but with an important rule attached.

Incentives cannot be so big that they could be seen as coercive. Medical information has to be disclosed to determine eligibility for the vaccine; therefore, a very large incentive could make employees feel like if they want the perks of getting vaccinated, they have to provide medical information to their employer that would not normally be required.

An Example of How Mandates Can Work

For some businesses and industries, the potential benefits of having a completely vaccinated workforce are well worth the risk of potential pitfalls.

Atria Senior Living, one of the nation's leading operators of senior living communities, began requiring employees to be vaccinated in late December 2020. Now, their workforce of more than 10,000 people is 98% vaccinated.

John Moore, CEO of Atria Senior Living, tells Verywell that the company deemed the vaccine necessary for employees to do their jobs well.

"For us, it was the right decision," Moore says. "Our residents deserve to live in a vaccinated environment, and our employees deserve to work in a vaccinated environment. We couldn’t be happier with our decision now, and we totally respect and admire the response from our staff to take the vaccine. It was huge for each of them personally, and it gives our company overall a great headstart on post-pandemic life."

The information in this article is current as of the date listed, which means newer information may be available when you read this. For the most recent updates on COVID-19, visit our coronavirus news page.