DANGEROUS DELTA VARIANT. A patient has her body temperature screened
after showing her COVID-19 vaccine card at Clínica Monseñor Oscar A.
Romero in the Pico-Union district of Los Angeles. The state of
California will soon require proof of vaccination or weekly testing for
all state workers and millions of public- and private-sector healthcare
employees. (AP Photo/Damian Dovarganes)
From The Asian Reporter, V31, #8 (August 2, 2021), page 14.
Explainer: Employers have legal right to mandate COVID
By Mae Anderson and Ricardo Alonso-Zaldivar
The Associated Press
WASHINGTON — The U.S. Department of Veterans Affairs. The state of
California. New York City. Hospitals and nursing homes. Colleges and
universities. Employers are putting COVID-19 vaccine mandates into place
and it’s getting attention.
On July 27, President Joe Biden said a requirement is under
consideration for all federal employees. But what happens if workers
Federal legal guidance out last month suggests the law is on the side
of employers. Vaccination can be considered a "condition of employment,"
akin to a job qualification.
That said, employment lawyers believe many businesses will want to
meet hesitant workers halfway.
Can employers require a coronavirus vaccine?
Yes. Private companies and government agencies can require their
employees to get vaccinated as a condition of working there. Individuals
retain the right to refuse, but they have no ironclad right to legal
"Those who have a disability or a sincerely held religious belief may
be entitled to a reasonable accommodation under civil-rights laws, so
long as providing that accommodation does not constitute an undue
hardship for the employer," said Sharon Perley Masling, an employment
lawyer who leads the COVID-19 task force at Morgan Lewis.
Employees who don’t meet such criteria "may need to go on leave or
seek different opportunities," she added.
The U.S. Justice Department addressed the rights of employers and
workers in a legal opinion. It tackled an argument raised by some
vaccine skeptics that the federal Food, Drug & Cosmetic Act prohibits
employers from requiring vaccination with shots that are only approved
for emergency use, as coronavirus vaccines currently are.
Department lawyers wrote that the law in question requires
individuals be informed of their "option to accept or refuse
administration" of an emergency use vaccine or drug. But that
requirement does not prohibit employers from mandating vaccination as "a
condition of employment."
The same reasoning applies to universities, school districts, or
other entities potentially requiring COVID-19 vaccines, the lawyers
added. Available evidence overwhelmingly shows the vaccines are safe and
The Justice Department opinion followed earlier guidance from the
federal Equal Employment Opportunity Commission (EEOC) that federal laws
prohibiting discrimination in the workplace "do not prevent an employer
from requiring all employees physically entering the workplace to be
vaccinated for COVID-19."
The EEOC listed some cases in which employers must offer exemptions.
People who have a medical or religious reason can be accommodated
through alternative measures. Those can include getting tested weekly,
wearing masks while in the office, or working remotely.
Who is requiring the vaccine?
The Department of Veterans Affairs last week became the first major
federal agency to require healthcare workers to get a COVID-19 vaccine.
Also on July 26, the state of California said it will require millions
of healthcare workers and state employees to show proof of a COVID-19
vaccination or get tested weekly. And New York City will require all of
its municipal workers — including teachers and police officers — to get
coronavirus vaccines by mid-September or face weekly testing.
Raising expectations, Biden said a vaccine requirement for all
federal workers is "under consideration right now." He later provided
the next steps for his administration’s vaccination campaign.
"The more we learn about this virus and the delta variation, the more
we have to be worried and concerned," the president said, adding that if
another 100 million Americans were vaccinated "we’d be in a very
The push for vaccines had been piecemeal in the corporate world.
Delta and United airlines require new employees to show proof of
vaccination. Goldman Sachs requires its employees to disclose their
vaccination status, but is not requiring staffers to be vaccinated.
Several other organizations now have added requirements, including
Saks Fifth Avenue, Morgan Stanley, Lyft, Google, Facebook, and others.
Michelle S. Strowhiro, an employment adviser and lawyer at McDermott
Will & Emery, said there are costs for employers requiring vaccines.
There’s the administrative burden of tracking compliance and managing
exemption requests. Claims of discrimination could also arise.
But ultimately, the rise in the delta variant and breakthrough cases
in fully vaccinated people has "served as extra motivation for employers
to take a stronger stand on vaccination generally," she said. "Employers
are going to be looking toward vaccine mandates more and more."
Is there any other alternative to mandates?
Instead of requiring vaccines, some companies are trying to entice
workers by offering cash bonuses, paid time off, and other rewards.
Walmart, for example, is offering a $75 bonus for employees who provide
proof they were vaccinated. Amazon is giving workers an $80 bonus if
they show proof of vaccination and new hires get $100 if they’re
What are the options for employees if they don’t want
to take the vaccine?
Most employers are likely to give workers some options if they don’t
want to take the vaccine. For example, New York City and California have
imposed what’s being called a "soft mandate" — workers who don’t want to
get vaccinated can get tested weekly instead.
If an employer does set a hard requirement, employees can ask for an
exemption for medical or religious reasons. Then, under EEOC
civil-rights rules, the employer must provide "reasonable accommodation
that does not pose an undue hardship on the operation of the employer’s
business." Some alternatives could include wearing a face mask at work,
social distancing, working a modified shift, COVID-19 testing, or the
option to work remotely, or even offering a reassignment.
Will workplace mandates turn the tide on vaccine
It’s too early to tell.
"Every employer that decides to mandate vaccination paves the way for
other employers to feel safer doing so," said Masling.
A recent legal decision may help move the needle. In June, a federal
district court in Texas rejected an attempt by medical workers to
challenge the legality of Houston Methodist Hospital’s vaccine mandate.
The court found such a requirement in line with public policy.
Dorit Reiss, a law professor who specializes in vaccine policies at
the University of California Hastings College of the Law, said "more
businesses will have confidence they can mandate the vaccine."
She believes most companies will go the route of a soft mandate, with
alternatives for employees who remain reluctant.
"I think it’s a reasonable option," she said.
Anderson reported from Nashville, Tennessee.
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