Can employers require the Covid vaccine?

Can employers require the Covid vaccine?

Is the Covid vaccine mandatory?

In recent months, the FDA has ordered distribution of new vaccines meant to immunize Americans and citizens of the world from Covid-19. This raises a question that may be difficult to answer - can my employer require that I receive the Covid-19 vaccine in order to keep my job? The short answer is yes, especially for essential workers.

In the United States, it is legal in most instances for an employer to require a vaccine mandate for their employees, such as the flu shot, to retain their employment, which is especially common for frontline employees (Centers for Disease Control and Prevention FAQs about Covid-19 vaccination in the workplace).

In Pennsylvania, as an “at-will” employee, an employer has the right to fire you for most 'just reasons' that do not relate to your personal identity. Based on Pennsylvania employment law, an employer may be able to show that refusing to be immunized from Covid-19 is a justifiable reason to terminate your employment. However, the coronavirus vaccine is not necessarily directly comparable to something as common as the influenza vaccine or other mandatory vaccination programs.

There are a few notable exceptions to this kind of blanket requirement.

  • Unionized Workers

If a workforce is unionized, the collective bargaining agreement may require negotiating with the union before mandating a vaccine.

  • Disability Accommodation

Anti-discrimination laws also provide some protections. Under the Americans with Disabilities Act, workers who don’t want to be vaccinated for medical reasons are eligible to request an exemption. In this case, an employer would have to provide reasonable accommodation, such as allowing the employee to work remotely.

From the employer’s perspective, under the ADA, an employer can have a workplace policy that includes "a requirement that an individual shall not pose a direct threat to the health or safety of individuals in the workplace."

In order for a vaccine requirement to affect a worker with a disability, however, the employer must show that unvaccinated employees would pose a "direct threat" due to a "significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation."

The EEOC said employers should evaluate four factors to determine whether a direct threat exists:

  • The duration of the risk.
  • The nature and severity of the potential harm.
  • The likelihood that the potential harm will occur.
  • The imminence of the potential harm.

If an employee who cannot be vaccinated poses a direct threat to the workplace, the employer must consider whether a reasonable accommodation can be made, such as allowing the employee to work remotely or take a leave of absence.

  • Religious Exemption

Finally, Under Title VII of the Civil Rights Act of 1964, if taking the vaccine is a violation of a “sincerely held” belief, they, too, would potentially be able to opt out using a religious objection.

The definition of religion is broad and protects religious beliefs and practices that may be unfamiliar to the employer. Therefore, the employer "should ordinarily assume that an employee's request for religious accommodation is based on a sincerely held religious belief," according to the EEOC. "If, however, an employee requests a religious accommodation, and an employer has an objective basis for questioning either the religious nature or the sincerity of a particular belief, practice or observance, the employer would be justified in requesting additional supporting information."

In summary, a COVID-19 vaccination requirement can be required as a condition of employment, with certain caveats. U.S. law provides certain conditions when you can refuse a mandatory vaccine and keep your job.

The EEOC has yet to release official guidelines, and advise employers to address a vaccine mandate on an employee-by-employee basis.