Can Employers Require Employees to Get the COVID-19 Vaccination?

As America gets back to in-person work, a major question looms: Can employers require employees to be vaccinated against COVID-19? The short answer is: yes!

Employees whose disability or sincerely held religious belief prevents them from receiving a COVID-19 vaccine may be entitled to a reasonable accommodation under laws, such as the California Fair Employment and Housing Act, Government Code § 12900, et seq.  However, even then, if an employer can show that the accommodation constitutes an undue hardship to the employer, the employer does not have to accommodate the unvaccinated employee.  Some employers are capable of accommodating employees with medical or religious reasons for refusing the vaccine, including by requiring weekly COVID-19 testing, wearing a mask at all times in the office, and/or remote work.

But for employees who are simply vaccine-skeptical, recent authority suggests that private and government employers can require their employees to get vaccinated as a condition of their employment. 

On May 28, 2021, the U.S. Equal Employment Opportunity Commission issued expanded technical assistance that states that neither the Americans With Disabilities Act of 1990 (“ADA”), Title VII of the Civil Rights Act of 1964 (“Tile VII”), nor any other federal employment nondiscrimination law precludes an employer from requiring as a condition of employment all employees physically entering the workplace to be vaccinated for COVID-19, subject to reasonable accommodation provisions of the ADA and Title VII.

On June 12, U.S. District Judge Lynn Hughes dismissed a lawsuit filed by employees of a Houston, Texas hospital system challenging the hospital’s requirement that all of its staff be vaccinated against COVID-19. In her opinion, Judge Hughes stated that the lead plaintiff in this case “can freely choose to accept or refuse a COVID-19 vaccine; however, if she refuses, she will simply need to work somewhere else. If a worker refuses an assignment, changed office, earlier start time, or other directive, he may be properly fired. Every employment includes limits on the worker’s behavior in exchange for his remuneration. That is all part of the bargain.” The plaintiffs in Jennifer Bridges, et al. v. Houston Methodist Hospital, et al. have appealed Judge Hughes’ decision to the U.S. Court of Appeals for the Fifth Circuit.

On July 6, 2021, the U.S. Justice Department issued a legal opinion that addressed whether the federal Food, Drug, and Cosmetic Act (“FDCA”) prohibits employers from requiring their employees to receive COVID-19 vaccines that are only approved for emergency use, as all COVID-19 vaccines in the market currently are. The opinion states that the FDCA requires that individuals be informed of their “option to accept or refuse administration” of a COVID-19 vaccine only approved for emergency use, but “does not prohibit public or private entities from imposing vaccination requirements, even when the only vaccines available are those authorized under” an emergency use authorization.

For employees, it is important that you can work in a safe work environment free from discrimination.  If you think you have been the victim of discrimination based on your disability or religious beliefs, please contact the attorneys at Freeburg & Granieri, APC today.

For employers, please contact the attorneys at Freeburg & Granieri, APC to discuss how we can help your organization properly navigate the laws and requirements surrounding workplace vaccine mandates and the reasonable accommodation process. The attorneys at Freeburg & Granieri, APC can also assist employers draft mandatory COVID-19 vaccination policies.