- The EEOC says employers can require employees get a COVID-19 vaccine or ban them from the office.
- Goldman Sachs is one of the few companies requiring workers to disclose if they are vaccinated.
- California healthcare workers must either provide proof of vaccination or agree to testing.
- Visit Business Insider’s homepage for more stories.
California will require state healthcare workers to get vaccinated or tested, the Department of Veterans Affairs became the first federal agency to require the shot, and Goldman Sachs will require US employees to report their COVID-19 vaccination status. Other bosses could do the same thing.
Employers can legally require employees get a COVID-19 vaccine or ban them from the office, the Equal Employment Opportunity Commission (EEOC) said in a recent guidance.
As just over 50% of people in the US have received at least one dose of a COVID-19 vaccine, workers are asking: Can my boss legally require that I get the COVID-19 vaccine?
California healthcare workers must provide proof of vaccination by August, or mask up and undergo COVID-19 testing. Goldman Sachs previously gave workers the option to disclose if they’d been vaccinated, allowing them to work maskless in offices if they reported that they were vaccinated. The disclosure is no longer optional. All employees must tell the company what date they were vaccinated and what brand, though they don’t need to provide proof.
Business Insider spoke with six labor and employment lawyers about whether workplaces can make coronavirus vaccinations mandatory for their employees.
Can bosses make a coronavirus vaccination mandatory at the workplace?
Workers likely first want to know what exactly their employers can require of them. In short, yes, employers can make vaccines mandatory, Jimmy Robinson, managing shareholder at the L&E firm Ogletree Deakins’s Richmond office, told Business Insider. He also mentioned that there would need to be religious and medical accommodations, with specific requirements varying by state and locale.
Karla Grossenbacher, chair of Seyfarth Shaw’s L&E practice in Washington, DC, said that employers would have to comply with the Americans with Disabilities Act (ADA). The ADA says that employers can require medical exams and vaccinations of employees under certain, specific conditions, like for healthcare workers, or if it poses a “direct threat” to the person if they are exempted, Grossenbacher said.
The EEOC, which enforces civil rights laws against workplace discrimination, has categorized COVID-19 as a direct threat. This designation allows employers to require temperature takes, masks, and social distancing. The federal agency has clarified that employers can mandate vaccination for employees, saying, “If a vaccine is administered to an employee by an employer for protection against contracting COVID-19, the employer is not seeking information about an individual’s impairments or current health status and, therefore, it is not a medical examination.” Medical examinations, including COVID-19 antibody testing, are not limited by the EEOC.
There are still many questions lawyers don’t yet know how to answer.
Workers have other questions about what employers can ask of them, too.
Nathaniel Glasser, a partner at Epstein Becker Green, said his clients are asking if they can restrict employees from attending large gatherings, or if employees can be required to come into work if they feel it is unsafe. Thomas Wassel, a partner at the law firm Cullen and Dykman on Long Island, said that in many cases employees do have to come to work, but it depends on specific circumstances.
“OSHA has tailored a rule that focuses on health care, that science tells us that health care workers, particularly those who have come into regular contact with people either suspected of having or being treated for Covid-19 are most at risk,” Labor Secretary Marty Walsh said. “We also expect to release some updated guidance for general industry which also reflects the CDC’s latest guidance and tells employers how to protect workers who have not yet been vaccinated.”
Unions and worker advocacy groups are largely disappointed by the limited rules, which were expected to apply to all workplaces. Key parts of the plan require that workspaces under its jurisdiction designate workplace safety coordinators, carry out hazard assessments, mandate and provide PPE, and other typical COVID safety protocols.
Federal and state regulations conflict
The EEOC and federal law say that employers can require employees to get vaccinated, but some states are attempting to find ways around these laws.
Arkansas, Florida, and Texas all have laws specifically prohibiting businesses and government agencies from requiring vaccinations. A Texas hospital is being sued by more than 100 employees after saying that vaccines would be required for continued employment. With federal and state laws in direct conflict, it’s unclear how things will shake out in Texas.
This legal gray area is likely why few companies have outright required vaccines for employees, though many are encouraging them with perks like bonus payments.