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Can Employers Force Workers to Get Vaccinated?

Whether or not employers can require workers to get inoculated against COVID-19 in order to return to the office or stay on the job is a rather complicated issue. According to the Equal Employment Opportunity Commission (EEOC), employers are legally allowed to require their workers to get a COVID-19 shot, with some exceptions. For example, workers with certain disabilities and those with medical and religious exemptions can opt-out from an employer vaccine mandate, as is the case with long-standing EEOC policy.

But it’s not that simple, as the COVID-19 vaccines were approved by the Federal Drug Administration (FDA) through an Emergency Use Authorization. Unlike past vaccinations, this new shot is given with an advisory that it’s completely voluntary. This has caused pushback by states and workers, too.

States Introduce Bills to Restrict Vaccination Mandates

To date, 110 bills have been introduced in state legislatures to restrict an employer’s ability to mandate vaccinations, according to the National Academy for State Health Policy. Six governors have signed legislation banning employer-mandated vaccinations and prohibiting state-required immunization passports.

For example, in Montana, the governor signed legislation that “prohibits discrimination based on vaccination status. This includes prohibiting an employer to refuse employment to a person, to bar a person from employment, or to discriminate against a person in compensation or in a term, condition, or privilege of employment based on the person’s vaccination status or whether the person has an immunity passport.”

Some Employers Mandate Vaccinations, Follow EEOC Guidelines

Some employers have shied away from a vaccination requirement out of fear of employee lawsuits while others have taken a firm stand and mandated vaccines. For example, Houston Methodist, a major healthcare system in Texas, requires COVID-19 vaccinations for its existing employees and new hires. The system, which employs more than 26,000 people, says employee vaccinations are essential to keeping patients safe. More than 100 of its workers filed a suit against the requirement in late May, contending that the “federally approved vaccines are experimental and dangerous.” Among other claims, the suit said the system’s policy violated a federal law governing the protection of “human subjects.” A federal judge in June dismissed the lawsuit. There are plans to appeal the judge’s ruling.

Houston Methodist’s policy allowed employees to request exemptions based on a documented medical condition or a conflict with their religious beliefs. It also allowed pregnant employees to delay their shots. And therein lies the challenge employers face even when following EEOC guidelines. Litigation is still a strong possibility from workers who do not want the vaccine and feel their rights are being violated.

In another example, investment bank Morgan Stanley recently announced that its bankers, brokers, and traders must be vaccinated before returning to their New York City and Westchester County offices. The bank’s employees in the New York area were also called upon to attest to their vaccination status by July 1. If a staff member isn’t vaccinated, they would have to continue working remotely.

Requiring employees to get the COVID-19 vaccination as a condition of employment is a tough call for management. No matter the decision, there will be unhappy people and the possibility of litigation. We will continue to monitor how employers manage this issue, particularly as more workers return to the office.

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