Can Employers Require COVID Vaccination for Employees?

Mandatory vaccination has always been an issue that evokes strong feelings and sparks controversy, but it’s been an especially popular topic since the White House issued it’s “Path Out of the Pandemic” this past September. Since then, OSHA has issued it’s official ETS putting the mandate into effect and a stay has been placed on that ETS by the Fifth Court in Louisiana.

With all the buzz about the recently issued vaccine mandate, questions have been circulating about what privately-owned businesses are and are not allowed to do regarding COVID-19. In this article, we’ll be answering some of these questions, specifically, are businesses allowed to require the COVID vaccine?

1. Can private companies require COVID-19 vaccination?
2. Historical vaccine mandates & how they were handled in the past
3. What types of employers can require COVID-19 vaccination?
4. Likely impact from OSHA ruling?
5. Do employers need to provide paid sick leave to employees for the COVID-19 vaccination?
6. What can employers do to require, or encourage employees to get vaccinated?
7. What if an employee refuses to get a COVID-19 Vaccination despite the Vaccine Mandate?
8. Can Employers in my state require the COVID-19 vaccine?
9. Examples of Vaccine Mandates from Other Countries
10. Companies Currently Requiring Vaccination For Some or All Employees

1. CAN PRIVATE COMPANIES REQUIRE COVID-19 VACCINATION

Up until September 2021, businesses had the option of whether they wanted to require employees to be fully vaccinated before returning to the physical workplace. Many businesses, of their own volition, chose to require everyone in their workforce to be fully vaccinated, while some chose to promote that they would not be requiring proof of vaccination.

Unlike businesses asking customers for information about their personal health, specifically regarding the COVID-19 vaccine, the rules are a little different for businesses. Private-sector businesses are ruled by OSHA and must comply with (HIPAA), which has many rules and regulations about what employers are allowed to ask and share regarding their employees personal health information.

Up to this point, it’s been vaguely unclear if businesses were allowed to ask their employees for proof of vaccination. Now that the ETS has been released, it’s been confirmed that employers are allowed to move forward with their own internal mandatory vaccination policies. Private-sector employers also have the option to offer testing to unvaccinated employees or terminate any employee who refuses vaccination.

2. HOW HAVE VACCINE MANDATES BEEN HANDLED IN THE PAST?

Many states have had a process for vaccine exemptions in place for decades. Although resistance to vaccination has always been common, formal requests for exemption were rare until about the 1960’s.

In 1777, George Washington issued the first U.S. vaccine mandate against smallpox for all his soldiers during the revolutionary war. American soldiers were susceptible to smallpox, but the majority of British troops were immune due to childhood exposure or vaccination. 

The Continental Army’s major military campaigns failed, as smallpox outbreaks swept through its camps. So the Continental Congress authorized Gen. Washington to require his troops to get vaccinated. Subsequent victories of American forces were attributed to the smallpox vaccine mandate.

First State-wide Mandatory Vaccination for Adults Over 21:

In 1809, Massachusetts instituted the first vaccine mandate that required smallpox vaccinations for those over the age of 21. Other states subsequently passed similar legislation. However, opposition to mandatory vaccination increased as states began to enforce these laws. Vaccine mandates were repealed in California, Illinois, Indiana, Minnesota, Utah, West Virginia, and Wisconsin. 

U.S. Vaccine Agency Established:

In 1813, The U.S. Vaccine Agency was established by congress. Then-president James Madison then signed the Act to Encourage Vaccination into law.

First Mandatory School Vaccinations:

In 1855, the first school vaccination mandates were established in Massachusetts. Today, all 50 states have mandatory vaccination requirements for children to attend school.

The first objections and exemptions were allowed in the U.K. in 1898. Exemptions weren’t allowed in the U.S. 

The Biologics Control Act:

The law was passed in response to tetanus outbreaks in Camden, New Jersey, and St. Louis caused by contaminated vaccines. It is the first modern piece of federal legislation to regulate the manufacture of pharmaceuticals. The law created the Hygienic Laboratory of the U.S. Public Health Service, which eventually became the National Institutes of Health.

3. WHAT TYPES OF EMPLOYERS CAN REQUIRE THE COVID VACCINE?

Up until last week, any employer could require the COVID vaccination for employees, it was a choice made by the employer. Due to the OSHA issued ETS, for most companies it is no longer a choice. All types of employers may implement a mandatory vaccination policy, but it is important to think through the benefits and risks before doing so. 

Every company is different. Some companies may get full support of a mandatory vaccination policy from their staff. Some companies may experience extreme pushback from their workforce. So, it’s important to gauge the overall temperature of your employees’ feelings about the vaccine and think through a strategic rollout plan before implementing any final decisions. 

It’s also important to consider the additional workload and accommodations a vaccine mandate may require. Some employees may have a pre-existing medical condition or disease that may prohibit them from getting the vaccine. Some employees may feel that their religious beliefs conflict with the vaccine and may want to submit an exemption request.

Another possibility to consider is whether unvaccinated employees will remain employed. It’s a difficult decision to make and an even more difficult situation to be in, so take some time to think through how your organization will handle non-compliance.

4. IMPACT FROM OSHA

The recently issued ETS by OSHA has made it mandatory for privately-owned companies with 100 or more employees to create and implement a mandatory vaccination policy for their employees. Although the ETS has been put on hold by the sixth circuit, experts advise that it is likely to move forward and employers should be prepared for the quickly approaching compliance dates. 

Many states have fought back on the OSHA ETS. Many states have even said they outright won’t comply with the mandate. Currently the ETS is on hold and the case is waiting to be heard by the federal Sixth Circuit Court of Appeals based in Cincinnati. 

5. DO EMPLOYERS NEED TO PROVIDE PAID SICK LEAVE TO EMPLOYEES FOR THE COVID VACCINE?

Up until this point, whether the cost of recovery time from the vaccine would fall on the employee or the employer was unclear. Now that the ETS has officially been released, it clearly states that employers are required to give employees up to four hours of paid time off to receive the vaccine and a reasonable amount of time to recover from any side effects from the vaccine.

6. WHAT CAN EMPLOYERS DO TO REQUIRE OR ENCOURAGE EMPLOYEES TO GET VACCINATED?

It’s no secret to anyone that the vaccine is a touchy subject, especially in the workplace. Many have strong feelings about the vaccine in relation to their personal health and rights. For this reason, it’s important for employers to approach the subject carefully, thoughtfully and inclusively. 

Many employers’ biggest challenge is getting their employees who are resistant or suspicious of the vaccine to comply with the mandate. So how can they encourage vaccination without too much backlash?

The best thing you can do is make sure that your employees have all the facts about the vaccine from reliable sources. A great resource to share with your employees is this article from the CDC about facts and myths regarding the vaccine. 

Another tried and true way to get employees to comply with requirements like vaccinations, flu shots and annual physicals is by offering an incentive. Many companies like Amtrak, American Airlines and Walmart are offering a monetary incentive upwards of $50 to their employees to get vaccinated. Bolthouse Farms, a child company of Campbell Soup, is reportedly offering their employees a $500 bonus to get vaccinated.

7. WHAT IF AN EMPLOYEE REFUSES TO GET VACCINATED DESPITE THE VACCINE MANDATE?

For private-sector employers, there are a couple of options they can choose from. If an employee refuses to get vaccinated, the employer has the option to require weekly testing for that individual or terminate them. If a worker is moved into the testing requirement, they are also required to wear a mask at all times in the workplace.

Testing can become expensive for an organization and many companies with large anti-vaccination populations are forced to face difficult decisions. Especially since many industries, like warehouse and transportation, are already struggling to retain employees as it is.

8. CAN EMPLOYERS IN MY STATE REQUIRE COVID VACCINE?

All 50 states have their own rules and regulations around mandatory vaccination, but the recently issued ETS supersedes these state-level rules. A state can issue it’s own mandate regarding COVID vaccination, but the requirements would need to be more strict than what is outlined in the nationwide ETS. 

Below is an overview of current state-level requirements and restrictions around vaccine mandates.

CURRENT STATUS OF STATE-LEVEL MANDATES

States that mandate for health care workers, “vaccination or termination”

Colorado	October 31, 2021
Maine	October 1, 2021
New York	September 27, 2021
Oregon	October 18, 2021
Rhode Island	October 1, 2021
Washington	October 4, 2021

States that mandate for health care workers, “vaccination or testing”

STATE	MUST BE VACCINATED OR SUBMIT REQUIRED TESTING BY:
California	September 30, 2021
District of Columbia	September 30, 2021
Delaware	September 30, 2021
Kentucky	October 1, 2021
Massachusetts	October 10, 2021
Mississippi	September 30, 2021
Nevada	August 15, 2021
New Jersey	September 7, 2021
New Mexico	August 2, 2021
North Carolina	September 30, 2021
Pennsylvania	September 7, 2021
Vermont	TBD
Wisconsin	TBD

States that mandate for health care workers, “vaccination or testing and masking”

STATE
Connecticut	September 7 2021
Illinois	October 4 2021
Maryland	September 1 2021

Nine States that ban vaccine mandates for employees:

Arizona	Ban applies to all employers except healthcare. Healthcare institutions are permitted – but not mandated – to require vaccinations. However, they must provide “reasonable accommodation” for any who are unvaccinated.
Arkansas	Ban scope is only state entities; does not address private sector employers.
Georgia	Ban scope is only state entities; does not address private sector employers.
Indiana	Ban scope is only state entities; does not address private sector employers.
Montana	Ban applies to all employers except healthcare. Healthcare institutions are permitted to ask employees to voluntarily share their status, and may assume that anyone who does not share their status is unvaccinated. However, they must provide “reasonable accommodation” for any who are unvaccinated.
New Hampshire	Generally bans the mandate of vaccines as condition of employment unless a “direct threat” exists that cannot be addressed by other means or reasonable accommodation
North Dakota	Ban scope is only state entities; does not address private sector employers.
Tennessee	Ban scope is only state entities; does not address private sector employers.
Utah	Ban scope is only state entities; does not address private sector employers.

Exceptions and Obstacles:

Arizona	Requires “reasonable accommodation” for unvaccinated staff in all settings and bans vaccine passports
Connecticut	Employer may not hire unvaccinated staff or volunteers.
Kentucky	Suggestion, not really a mandate; twice a week testing.
Montana	General ban, except that healthcare employers are permitted to ask employees to voluntarily share their vaccination status for the purposes of reasonable accommodation only. Also bans vaccine passports.
New York	Only requires ONE dose by deadline for healthcare workers.
Oregon	Stipulates that vaccination is by deadline OR six weeks following full FDA approval, whichever date is later.
Pennsylvania	All new hires must be vaccinated prior to starting to work.

10. EXAMPLES OF VACCINE MANDATES IN OTHER COUNTRIES

Two countries that have handled the pandemic very differently are Britain and Australia. The results produced from their individual approaches to minimizing the impact of COVID-19 are very different as well.

Australia

In March of 2021, Australia had a total of five cases of COVID-19 in the entire country. Australia was quick to act on

In March of 2020, Australia had a total of five cases of COVID-19 in the entire country. One year after Coronavirus sent the entire world into a global lockdown, Australia continues to have the lowest numbers in Coronavirus cases.

Although we can’t ignore the geographic and population-density advantages that Australia has over many countries, their attitude and quick action was unique and made a big contribution to why they’re still doing so well today. 

Australia was quick to act on getting the virus under control and many have written about the example that other world leaders should take from Australia’s attitude and leadership. Some steps they took that made a big impact were:

• Early border closures
• Quickly implemented safety measures: Not only was Australia quick to implement their lockdown, social distancing and other safety restrictions, their people followed the guidelines set in place.
• Universal Healthcare: Australians weren’t fearful about costs associated with testing or medical costs relating COVID-19 because of the way their healthcare system was already set up.

Britain

Britain handled the pandemic very differently and it shows in their continuous rising number of cases.

The U.K. has been one of the hardest hit countries by the pandemic and has been criticized by many for it’s poor implementation of safety precautions and reporting. To be fair, it does have a denser population and sees more tourism traffic than Australia, but their attitude and decisions made by leadership played a bigger role than their geographic circumstances.

In stark contrast to Australia, Britain made early decisions to delay precautionary action to fight COVID-19 and put limits on who would be tested for the virus. Additionally, they were slow to implement an official lockdown in comparison to most other countries. 

For example, many U.S. states and territories began implementing official stay-at-home orders as early as March 15, 2020 – Britains didn’t implement a lockdown until March 23rd, over one week later. When you think about how quickly Coronavirus was being spread, especially early on, eight days is a long time.

9. Mandates in other countries

Many countries are implementing different variations of a mandatory vaccination policy. Some are only requiring certain workers to get vaccinated. Some, like France, are requiring certain establishments to require vaccination for entry. Some, like Costa Rica, are even starting to require vaccination for children.

Indonesia, along with Micronesia and Turkmenistan, were among the first countries to implement mandatory vaccinations against COVID-19 for all adults in February, with hefty financial penalties for non-compliance.

Last month, Austria was the first European country to announce a country-wide vaccination policy for all adults, effective February 1. Penalties for non-compliance are still unclear. Here in the U.S., our mandatory vaccination policy is still being challenged by multiple courts, but the order is likely to go through. Especially with the rise of new variants like Delta and Omicron, many countries are predicted to follow suit of Austria within the coming months.

10. BUSINESSES CURRENTLY REQUIRING SOME OR ALL OF THEIR EMPLOYEES TO GET VACCINATED:

• Amtrak
• Anthem 
• BlackRock
• Cisco
• CitiGroup
• CVS Health
• Deloitte
• Doordash
• Equinox
• Facebook
• Ford
• General Electric 
• Goldman Sachs
• Google 
• Jeffries
• Lyft
• McDonalds
• MGM Resorts International
• Microsoft
• Morgan Stanley
• NBCUniversal
• Netflix
• The New York Times
• Saks
• Salesforce
• Southwest Airlines
• TJX
• Twitter
• Tyson Foods
• Uber
• Union Square Hospitality Group
• United Airlines
• ViacomCBS
• Walgreens
• The Walt Disney Company
• Walmart
• The Washington Post

So to answer the initial question we sought to answer, yes. Private employers are in their full right to implement a COVID-19 Vaccination Policy. Employers are also permitted to terminate employees who refuse to get vaccinated after exploring all reasonable accommodations. If you'd like to learn more about how to implement a Mandatory Vaccination Policy at your organization, you can read our full Mandatory Vaccination Policy guide here.