The short answer to ‘Can my employer make me get vaccinated?’ is YES. Multiple federal agencies and acts are involved in the right of vaccine mandates: the Equal Employment Opportunity Commission (EEOC), the Occupational Safety and Health Administration (OSHA), the American Disabilities Act (ADA), the Civil Rights Act of 1964, the Health Insurance Portability and Accountability Act of 1996 (HIPAA), the Biden Administration as well as historical legal precedents.
EEOC
On December 16, 2020 the EEOC confirmed that a COVID-19 vaccination requirement by itself would not violate the ADA. On May 28, 2021 they reaffirmed that employers can require workers who are returning to offices to be vaccinated for COVID-19. The U.S. Department of Justice considers employer vaccine mandates to be legally permissible. “Employment in the U.S. is generally at will, which means that your employer can set working conditions,” says Dorit Reiss, University of California law professor.
An employer asking about vaccination status or implementing vaccine mandates is not a violation of HIPAA. “If an employer asks an employee to provide proof that they have been vaccinated, that is not a HIPAA violation and employees may decide whether to provide that information to their employer,” according to the U.S Department of Health and Human services. If the employee chooses not to comply and the employer terminates them for failing to comply, then the employee is NOT eligible for unemployment benefits.
OSHA
OSHA requires employers to provide a safe workplace. This includes assessing the risk of exposure to COVID-19 and developing a plan to protect employees. Employers are vulnerable to lawsuits from workers who might have contracted COVID-19 at their place of employment.
The Biden administrations implementation of vaccine mandates or weekly tests for all federal workers and employers with over 100 employees has OSHA scrambling to draft an emergency temporary standard to carry out this mandate. The language of the mandate will dictate the potential legal challenges from employers.
ADA
The ADA and Title VII of the Civil Rights Act of 1964 offer legal exceptions to vaccine mandates for employees. If employees have a medical reason or sincerely held religious beliefs that prevent them from taking the COVID-19 vaccine, employers are legally required to give these workers a reasonable alternative to continue to work. The EEOC guidelines say that even if an employer finds that a worker cannot be vaccinated due to a disability or religious belief and they pose a risk to the workplace, the employer cannot exclude the employee from their job or take any other action unless there is no way to provide a reasonable accommodation that would reduce their risk to others. The same level of safety as a vaccine could be through masking, remote working, physical distancing and/or testing.
Biden Administration
On September 10, 2021 President Biden announced that employers of more than 100 people must have vaccine mandates or weekly COVID-19 tests. This impacts 80 million workers and fines up to $14,000 per violation for employers that ignore the mandate are part of the new policy.
Federal employees, contractors of federal agencies and staff at all healthcare facilities that receive federal funding from Medicare or Medicaid have required to get COVID- 19 vaccinations. Unlike the employees at private companies, federal workers DO NOT have the option to get routinely tested versus vaccination.
Legal Precedent
The 1905 Supreme Court ruling on Jacobson v. Massachusetts upheld the authority of states to enforce compulsory vaccination laws which might restrict personal liberty for public health purposes. Companies and government organizations have required various vaccinations for years subsequent to this ruling. U.S. school boards as well as the U.S. military members require various vaccinations in order to participate. “The justification for allowing employers to mandate vaccinations is based upon the logical and strong premise that unvaccinated employees present a ‘direct threat’ to others in the workplace,” writes the National Law Review.
Concerned about your employer’s mandates or lack thereof? Contact Smith Hanley Associates’ Actuarial Executive Recruiter, Rory Hauser at rhauser@smithhanley.com.
