Can Small Businesses Require COVID Vaccines in the Workplace?

Can employers require the COVID-19 vaccine for employees? Find out if you can legally require employees to get vaccinated.

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Updated August 5, 2021

A healthy workforce is the fuel businesses run on. That explains the groundswell of employee wellness programs during the past few decades alone. Enter COVID-19 in 2020 and small- and mid-sized businesses (SMBs) suddenly had a greater health concern – how to help stop the spread of the virus.

Now SMBs are asking whether they can require COVID-19 vaccinations of their employees to give the workplace further protection.

The short answer? Yes.

Businesses can require COVID vaccines, but the other question is whether they should and what are the risks.

Under U.S. labor laws, private-sector at-will employers — those who can hire or fire for cause or no cause at all — can require employees to get COVID-19 vaccinated, said Holly Helstrom, an adjunct instructor at Columbia University, where she teaches employees First Amendment rights.

SMBs also may be wondering why they can’t just treat COVID-19 vaccination policies like flu vaccinations to maintain a healthy work environment. A key reason is that the U.S. Federal Drug Administration (FDA) gave COVID vaccines emergency-use approval, unlike influenza and other common types of inoculations.

However, the FDA doesn’t mandate COVID-19 vaccinations.

There are ‘off-duty conduct’ laws and privacy laws in many states that prohibit employers from taking action against employees who engage in legal activities outside the workplace.
These laws, often called “off-duty conduct” laws or “lifestyle discrimination” laws, take several forms. In some states, such as California, employers are prohibited from taking action against employees for any lawful activities they choose to undertake in their own time, away from the work site. Some states, including Nevada, protect employees from discrimination for the lawful use of any product offsite during non-work hours. And, some states, like Connecticut, limit the protection to smoking or tobacco products. In these states, employees may not be fired for smoking or otherwise using tobacco, and they may not be required to quit as a condition of employment.
While any at-will employer can fire an employee for NO reason – it might be illegal – depending on where you live – to notify they’re being fired, or even not hired, because they smoke or drink and could be grounds for a complaint or suit.
In some states, there are limited exceptions to these privacy laws.  In Illinois for example, non-profits may exclude people whose behavior is contrary to the mission of the organization – so the American Cancer Society, for example, can discriminate against smokers, but these are very limited. For the most part, it would probably be a bad idea to fire someone for this if they don’t do it on the worksite or during work hours if they’re remote.

So what about vaccine mandates in the workplace?

However, employees have rights that protect them against mandated COVID vaccination policies and the consequences of losing their job.

Read more: 64% of Unvaccinated Employees Don’t Intend on Getting a Shot, Plus Other Return to Work Insights from SMBs.

VaccineReturn to Work story graphics_5

A survey from 1,000 small business employees found 24% of SMBs are requiring employees to be fully vaccinated. 

Workers’ rights and employers’ risks

Attorney Mark Kruthers, director of employment and labor services at the Fennemore law firm, cautions SMBs that it’s the employee – not the employer – who has rights under mandatory vaccination policies.

“While SMBs may be able to require employees to get vaccinated in order to return to the workplace, the employer must respect the rights of the employees in regard to medical, religious, and other related issues,” he said.

Firing an employee for rejecting a mandated vaccination policy can trigger discrimination suits, especially when the reasons for the rejection include a legally protected status such as an employee’s:

  • Medical condition
  • Religious belief
  • Healthcare privacy issue

A medical concern can be as basic as an employee claiming to have an existing anxiety that a COVID-19 vaccination would exacerbate, said Kruthers.

“If the employee presents a note from a doctor or therapist supporting this concern, the employer will need to determine what accommodations can be provided,” he said.

Furthermore, disabling side effects from the vaccine could result in a worker’s compensation claim, and that if a sizable number of employees refused to get vaccinated, an employer could end up with so many exemptions that it would be unable to operate, Kruthers added.

Additional risks for employers’ with COVID vaccine policies are confidentiality breaches in employees’ medical information.

Employers must be careful about the information they receive to avoid coming up against the U.S. Equal Employment Opportunity Commission (EEOC). Although the agency announced its approval of employer mandated COVID-19 vaccines in January 2021, it recommends that employers take a hands-off approach to administering the vaccine.

“While SMBs may be able to require employees to get vaccinated in order to return to the workplace, the employer must respect the rights of the employees in regard to medical, religious, and other related issues.”

This means, for example, that businesses should allow workers to be vaccinated by a healthcare provider of their choice and avoid entering into contractual agreements with clinics to provide onsite vaccinations.

The EEOC doesn’t want employers to get access to employees’ confidential medical information during the recommended vaccination pre-screening process, said Kruthers. The agency’s concerns aren’t an issue if employees volunteer the information or get vaccinated by someone who’s not associated with the employer.

Read more: How Small Businesses Are Incentivizing Employees to Get Vaccinated

When workers refuse the vaccine

If an employee refuses to abide by the policy because of a disability or a sincerely held religious belief, the employer is obligated to engage in the interactive process with the employee and determine if any reasonable accommodations are possible, said Amanda Baer, a partner at Mirick O’Connell. Employers who fail to engage in the interactive process or to offer or explore reasonable accommodations will likely face a discrimination claim based on the employee’s disability or religion.

Baer said that accommodations include, but aren’t limited to, remote work, a separate officer, or unpaid leave.

“Whether an accommodation is possible and/or reasonable is very fact-specific and depends upon the employer’s work environment and business needs and the employee’s job duties and medical/religious needs,” she added.

Accommodations and the interactive process offer workers protection under the Americans with Disabilities Act (ADA) and the 1964 Civil Rights Act, which are enforced by the EEOC.

The CDC, OSHA and state and local laws

The Centers for Disease Control and Prevention (CDC) has been the key go-to source for handling the pandemic. SMBs looking for help with COVID vaccination-related questions can check the CDC’s fact sheet for employers. The Q&A document answers questions about vaccine safety, side effects, reopening the workplace and being vaccinated while testing positive for the virus.

SMBs may find the fact sheet especially helpful with workers who refuse to get vaccinated. The CDC advises employers to encourage employees to get vaccinated by:

  1. Offering paid leave for workers to get vaccinated and supporting transportation to offsite vaccination locations.
  2. Publicizing vaccination locations in the community through posters and ads at the worksite.
  3. Promoting the importance of getting vaccinated to workers in newsletters, emails and company intranets.

The CDC refers employers to the EEOC and their local health departments for questions about implementing a COVID vaccine program, vaccine mandates and employee exemptions.

The U.S. Occupational Health and Safety Administration (OSHA), which enforces workplace safety standards, also recognizes employers’ right to mandate COVID-19 vaccinations. The agency issued these new guidelines on April 20, 2021, for employers with vaccine mandates:

  1. When employers have COVID-19 vaccine mandates, OSHA considers employees’ adverse reactions to the vaccine “work-related.” Therefore, the agency requires employers to report any adverse reactions to the agency within 24 hours of an employee’s hospitalization or within eight hours of the employee’s death.
  2. If an employee’s adverse reactions fall under OSHA’s general record-keeping requirements, such as the need for work restrictions or a job transfer, the number of days away from work, or medical treatment beyond first aid, employers must record the reaction on their OSHA 300 log, even if hospitalization isn’t necessary. This kind of recording could be for an adverse reaction like chills and fever. But no recording is necessary for a reaction requiring treatment from an over-the-counter medication.

Currently, most states only acknowledge medical or religious exemptions to vaccine mandates, according to David Eugene Williams, a healthcare business and policy expert.

Since states and local governments usually have their own rules and guidelines for administering COVID-19 vaccines, employers should be familiar with the laws in the jurisdictions in which they operate. The law firm HuschBlackwell posts a 50-state update on vaccination mandates that employers can review online.

VaccineReturn to Work story graphics_7

A survey from 1,000 small business employees found 44% of employers allowed time off to get the COVID-19 vaccine. 

Solutions for maximum advantages

SMBs should weigh the legal consequences of adopting a COVID-19 vaccination mandate against the advantages of having a fully vaccinated workforce. Williams thinks SMBs should focus now on encouraging employees to get COVID vaccinated and possibly mandate vaccinations in the fall, if necessary.

Williams also proposes mandating vaccines for employees returning to the workplace and allowing unvaccinated employees to continue working from home for a while. However, he thinks employers should require new hires to be vaccinated.

While the CDC leaves the legal questions about vaccine mandates to government and health authorities, the fact sheet lists the advantages as:

  • Reduced absences due to illness
  • Reduced absences to due doctors’ visits
  • Less time missed from work to get the vaccine
  • Higher productivity
  • Increases in morale

Williams thinks that mandating vaccinations will be good for businesses in the long run.

“[Mandates] will demonstrate that [employers care] about the welfare of their staff, reassure employees that it is safe to come to work, and make customers more confident in doing business with the company,” he said.

“It is likely that we will face new pathogens with new vaccines in the coming years, so 2021 presents a good opportunity for employers to look ahead and articulate principles that they will follow.”

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