Can a company require its employees to be vaccinated against COVID-19?

Nov 18

Is your company reentering in-person work and wondering whether they can require all the employees to be vaccinated against COVID-19? The short answer is – ‘it depends’.

Assuming you are a private employer (not a government actor) and not in a health care setting, the answer is ‘maybe.’

• Employers have a general duty to provide safe working environments under the Occupational Safety and Health Act.

• The vaccine is uniformly recommended for those 5 and over by the CDC, the WHO, the EEOC, and OSHA.

• Although the EEOC has taken the position that mandatory vaccine policies do not violate federal anti-discrimination laws, some states have passed state-level laws restricting businesses from requiring vaccination as a condition of entry or employment. Conversely, some states require these policies. To add to this confusion, some states require the alternative of regular COVID-19 testing.

• In November of 2021, OSHA issued a Covid-19 Vaccination and Testing Emergency Temporary Standard (ETS) imposing detailed requirements on certain larger employers with 100 or more employees which states it preempts state and local law. This is currently being challenged in numerous courts.

So, which of these overlapping and opposing laws applies? It depends on how many employees you have, where your employees are located, and where your Company is based. Even then, it is challenging to be fully legally compliant in this rapidly evolving legal landscape. If you do institute a policy, you should be careful it complies with OSHA, EEOC, the NLRA, wage and hour laws, and privacy laws. You may wish to provide exceptions such as medical exemptions and sincerely held religious belief exemptions (which are also required by some states’ laws). You should address whether both doses must be taken and whether boosters will be required. It’s wise to specify whether the employees may get the vaccination during work hours and what type of proof of compliance you will accept.

And, of course, if you’d like help drafting a policy reach out to us.