As the COVID-19 vaccine begins distribution, not everyone is on board to roll up a sleeve and get the shot. The latest Gallup poll found that 63% of people in the U.S. would be willing to receive the FDA-approved COVID-19 vaccine, up from 50% in September. But that means 37% of Americans are not.
But it might not be up to individuals whether to receive the vaccine or not. Due to public health imperatives, some employers may require you to take the vaccine as a condition of employment.
"Public health and employment law overlap under the federal and state level Occupational Safety and Health Acts (OSHA)," says Jared Carter, associate professor of law at Vermont Law School in South Royalton, Vt. "Under the OSHA framework, employers are legally required to provide a workplace that is safe and free from health hazards. As a result, employers must institute policies that mitigate health and safety risks, including workplace-caused illnesses. This may mean that some employers must require vaccination if safety necessitates it."
When Will the Vaccine Be Required?
The level of necessity will depend on your job, says Carter.
"A vaccination requirement is more likely to be appropriate in industries where employees will interact with vulnerable populations, such as in the healthcare industry," he says. "The Equal Employment Opportunity Commission already provides guidance indicating that unless an employee fits a specific exemption, employers may require vaccination during a pandemic."
Where you live may also matter. Under the federal system of government, each state can assign its own legal framework and requirements.
"Historically, the U.S. Supreme Court has indicated that states retain great leeway when it comes to public health emergencies, so it is entirely possible that some states may have vaccination requirements in some industries and other states will not," says Carter. "Since COVID-19 moves freely across state lines, such a patchwork of state laws may create practical difficulties. However, it is unclear whether Congress has the legal authority or desire to pass such vaccination laws at the federal level. As a result, states will likely have varying laws with respect to vaccination requirements."
When Can an Employee Refuse the Vaccine?
Two exceptions give employees the right to refuse a mandated vaccine, says Edith A. Pearce, an employment lawyer with the Pearce Law Firm in Philadelphia, Pa.
"First, if an employee has a sincerely held religious belief, practice, or observance against being vaccinated under Title VII of the Civil Rights Act, an employer has a duty to reasonably accommodate the employee unless this creates an undue hardship on the employer's business," she says. "Accommodations could include requiring the employee to wear a mask if they have a religious objection to being vaccinated. In cases involving employees objecting to the flu vaccine, courts have held that views based on mere personal beliefs regarding the health effects of the flu vaccine and the desire to avoid the vaccine does not qualify as a 'sincere held religious belief.'"
An employee can also request an exemption due to a medical reason protected under the American with Disabilities Act. This could include someone who carries an adrenaline autoinjector due to a history of a significant allergic reaction to a vaccine, medicine, or food, says Pearce.
"If an employee indicates that vaccination may not be safe because of a health condition, the employer may request disability-related documentation that substantiates that the individual should not receive the vaccination because of a health condition," she says. "The employer would likely again need to provide reasonable accommodation such as wearing a mask as effective alternative means of infection control."
Can You Be Fired?
If an employer requires vaccination in a manner consistent with the law, and an employee does not fit an exemption, it is possible that an employee could be fired for non-compliance. But should they?
"Research shows that incentivizing vaccination rather than requiring it often leads to better compliance," says Carter. "Employers are generally better off negotiating compliance rather than forcing it under penalty of termination."