Could employers require a COVID-19 vaccine?

Laura Morrison

CLEVELAND (WJW) — As news of promising progress on coronavirus vaccines has things looking up, attorneys say employers are starting to think about their options.

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“I think a lot of people are anxious to get back to work in many sectors, I think that everyone wants to do that safely,” said Jason Bristol, an employee rights lawyer and partner at the firm Cohen, Rosenthal & Kramer. 

Some are wondering, can an employer require that their employees get the vaccine?

“The short answer is yes, but there are a number of caveats,” said employment lawyer Richard Selby, a partner at the law firm Dworken & Bernstein. 

“If you refuse to be vaccinated, your employer is probably within their rights to terminate you for that decision, with a couple of exceptions,” said Bristol.

The American Disabilities Act and Title VII of the Civil Rights Act of 1964 require employers to provide “reasonable accommodations” to people with qualified disabilities and to those who have religious objections.

“It might be requiring somebody to work remotely if their job permits that,” said Selby of an example of an accommodation. 

Bristol offered another: “Those might look like the employer requiring them to wear PPE in the workplace if others have been vaccinated and they have not.”

Another caveat, Bristol says, could be for union workers: “If you’re a member of a union you want to look at what your union contract does or doesn’t require.”

But Selby and Bristol don’t expect many employers will go the route of a mandate. 

“I think a lot are probably going along the lines of strongly suggesting as opposed to mandating or requiring because it does open up some of these thorny legal issues,” said Selby.

Bristol foresees employers getting creative. 

“I think you’re gonna see employers doing things like trying to incentivize employees to get vaccinated or have their senior leaders get vaccinated first to show that it’s safe,” he said.

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Selby says employers that are more likely to require vaccination would be health care providers and hospitals, but we reached out to the Cleveland Clinic and University Hospitals, and both say they do not plan to require the shots at this time.

Legal experts say employers are also waiting on guidance from the U.S. Equal Employment Opportunity Commission, that has already provided advice on other COVID safety measures.

“Employers have already taken certain steps for example requiring employees to wear masks, some employers they take your temperature coming in,” Selby said.

We did reach out to the EEOC regarding the status of their guidance and are still waiting to hear back.

Bristol says in the best-case scenarios, we will see employers and employees working together to try and address this challenge. 

“This is very much an unfolding story,” he said.

Both attorneys also noted there may be concern over mandating these vaccines as they are expected to first be available under emergency use authorization.

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