Uncertainty has been a staple of the past 14 months, and it is currently manifesting in the employment sphere. As workers return to their physical places of employment, many employers are considering mandating vaccinations for COVID. In fact, some companies have already begun their mandatory vaccination rollout.

For a majority of employees, such a mandate may seem immaterial, as 39.3% of the U.S. population is already fully vaccinated -- but what about the 25% of Americans who do not currently plan to get vaccinated? While it is still unclear whether an employer can mandate an employee get vaccinated before she or he can return to work, employers may in fact have this authority.

Precedent For Mandating Vaccination in the Workplace

Mandating employee vaccination may sound dramatic to some, but there is actually ample precedent for employers doing just that. In response to the H1N1 influenza outbreak, OSHA and the EEOC provided guidance that, in the absence of applicable law to the contrary, seemingly gave employers the authority to mandate their employees get vaccinated against H1N1. Similarly, sanitation workers are routinely required to be vaccinated against Hepatitis.

Exceptions: Religion and Medical Consequence

Traditionally, there have been two routes that employees may pursue in order to avoid employer-mandated vaccinations.

First, under the Civil Rights Act of 1964, an employer cannot force an employee to do something that is against his or her religion. If an employee can demonstrate a legitimate objection to vaccination for religious reasons, they may be able to avoid a vaccination mandate.

Second, an employee may be able to refuse a vaccination mandate if he or she can demonstrate a legitimate medical consequence that would come with their getting vaccinated. For example, there may be genuine medical risks associated with vaccination in cases where an employee is pregnant or has a history of severe allergic reactions to vaccines. An employer mandating vaccination of an employee in this category runs the risk of violating the Americans with Disabilities Act (ADA).

Current Guidance

Like they did in response to the 2009 H1N1 influenza outbreak, the EEOC offered guidance with respect to employers mandating employee vaccination against COVID. The guidance suggests that employers can not only mandate vaccination but can also exclude unvaccinated persons from the workplace. This exclusion extends to those employees who have refused a vaccine for religious purposes, although this does not mean that the employer can automatically terminate the employee.

Potential Limits on Mandatory Vaccination

Despite the above-mentioned guidance from the EEOC, it is still unclear exactly whether employers definitively have the legal authority to mandate employee vaccination. For one, a number of states have introduced legislation that would prevent employers from making such mandates. The proposed laws vary widely across states, but they all intend to shield employees from mandatory vaccination.

Emergency Use Authorization

Mandatory vaccinations are made even more complicated by the fact that none of the COVID vaccines have received complete FDA approval. Rather, these vaccines were approved under an alternative Emergency Use Authorization protocol. There is some indication that this distinction could place a further limit on an employer’s authority to mandate vaccination. However, the law here will remain unsettled until it is litigated in court.

Can Employers Mandate Employee Vaccination For COVID?

There is significant tension in the American labor market today, as 65% of employers plan to require employee vaccination for COVID while ⅔ of unemployed persons looking for work say they would not get a vaccine even if their employer incentivized it. Only time will tell how the law will come out on this sure-to-be hotly contested issue.

Are you an employer wondering whether you can legally mandate vaccination of your employees? Are you an employee trying to determine whether you may be exempt from your employer’s vaccination mandate? Don’t struggle alone. Let us put you in touch with one of the employment attorneys on our platform: www.trusli.com

Sign up to receive our email newsletters

Thank you for subscribing!
Oops! Something went wrong while submitting the form.
Gloria Qiao J.D.

Gloria is the founder of Sleegal.ai, seasoned lawyer, business person and entrepreneur, determined to bring legal help to you at an affordable cost efficiently.

Gloria Qiao J.D.

Gloria is the founder of Sleegal.ai, seasoned lawyer, business person and entrepreneur, determined to bring legal help to you at an affordable cost efficiently.

Got a question?

Drop us a note. We will get back to you within 1 business day.

Thank you! Your inquiry has been received.
Oops! Something went wrong while submitting the form.


CPOs: The Five Steps To Win Your Seat at the Table

December 6, 2022

We have written extensively about why there should be a “Chief Procurement Officer” position and why such leaders should have a seat at the C-suite table, rather than reporting to the CFO or an engineering officer. But how? Like most things in this life, it won’t get handed on a silver platter. I have many fellow procurement leaders who are struggling to receive acknowledgment and achieve a voice. Here are some suggestions.

Read more

The Seven Sins of UX Designers

December 1, 2022

User experience designers tend to overthink and complicate things when it comes to product design. Our UX Design team collaborated to provide their top suggestions for enhancing efficiency and improving the user experience by avoiding these common missteps.

Read more

Organizational Design: Where should the Chief Procurement Officer Sit

November 2, 2022

Since Covid-19 prompted a global supply-chain shortage, procurement has attracted a lot of attention it didn’t previously receive. So where should a Chief Procurement Officer sit within a company? An even better question is: should there be a Chief Procurement Officer at all? Here are some thoughts.

Read more

How Procurement Teams Are Evaluated and Why You Must Have a System to Track Your Metrics

October 12, 2022

The procurement leaders should have a neat, sleek dashboard where all the data can be sliced and diced to show management why the team is doing a good job, thus deserving more funding/headcounts.

Read more

What is an RFP and Why You Need a Good System to Conduct One

September 28, 2022

For procurement managers, the process of running a large-scale RFP with multiple vendors tends to be involved, complex, and chaotic. The bad news is that’s almost by definition what running an RFP means. The good news, however, is that you can use a software system to manage the process to eliminate manual work, consolidate information, collaborate effectively with both the internal and external teams, and ultimately digitalize the RFP process. Here is how.

Read more

Why and How Trusil Legal Playbook Solution Will Serve Both Legal and Procurement Teams

September 7, 2022

Previously, we have written about why the legal playbook is the answer to contract negotiation automation. We often get asked: who is your target customer? Is it in-house legal teams or procurement? Our answer has always been: both. Here is why and how.

Read more
View all posts