As an employer, you may be considering instituting a COVID-19 vaccine mandate for your employees. But before doing so, it is important to fully understand the legal ins-and-outs.
Most importantly, it is legal to require your employees to be vaccinated against COVID-19, even if they’ve already contracted and recovered from the virus.
If you choose to go this route, you are not alone.
The federal government and the U.S. Department of Defense are now mandating vaccines for their entire workforce. So are many state governments, large private companies, such as Facebook, Google, Walmart, Disney, and many hospitals and major health systems.
The law is on your side
The law is behind workplace vaccine mandates. In July, the U.S. Department of Justice issued an opinion that says that getting a vaccine can be a condition of employment, just like any other job qualification.
Some employees have filed lawsuits saying that the Federal Food, Drug, & Cosmetic Act prohibits employers from requiring shots with vaccines that have been approved only through an Emergency Use Authorization (EUA), as is the current case with COVID-19 vaccines.
But the DOJ guidance says that employers can still require the immunization despite the EUA status. The mandates are not coercive as employees do have the right to refuse the shot, although that may mean they’ll have to find another job, it says.
Also recently, a federal judge in Houston, Texas, dismissed a legal challenge by employees of a Houston hospital over its requirement that its entire staff is vaccinated against COVID-19.
“If a worker refuses an assignment, changed office, earlier start time, or other directives, he may be properly fired,” U.S. District Judge Lynn Hughes said. “Every employment includes limits on the worker’s behavior in exchange for remuneration. That is all part of the bargain.”
The DOJ guidance does allow exemptions for those with disabilities, such as a medical condition that makes it unsafe for them to receive the vaccine, or a sincerely held religious belief or practice that prohibits the use of the vaccine. However, the U.S. Equal Opportunity Commission says that an employer can ask questions to evaluate the sincerity of the religious belief or practice.
What if the employee has already had COVID-19?
The United States Centers for Disease Control and Prevention says that everyone should be vaccinated for COVID-19, even if they’ve already contracted and recovered from the virus; therefore employers should not give those employees exemptions.
“Even if you have already recovered from COVID-19, it is possible — although rare — that you could be infected with the virus that causes COVID-19 again,” according to the CDC. “Studies have shown that the vaccination provides a strong boost in protection in people who have recovered from COVID-19.”
Employer vaccine mandate alternatives
If you would prefer to forego a vaccine mandate, there are other ways to encourage your employees to get the vaccine or simply mitigate the risk of COVID-19 transmission in your workplace:
- A “soft” mandate, which requires workers who don’t want to get vaccinated to be
tested weekly - Incentivization, such as extra time off or a cash bonus, for those who show proof of
vaccination - Alternative virus protection, such as masks or social distancing
- New hire bonuses for those who are vaccinated
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