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Can Employers Require Workers to Become Vaccinated against Covid-19?

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The country’s first Covid vaccine could be authorized for emergency use as soon as today. If Pfizer gets the green light, distribution is set to begin next week.

Roughly six in ten Americans say they would get a vaccine, according to a recent survey by the Pew Research Center. Although this exceeds the figure from two months ago, to achieve herd immunity experts opine that about 70% of the population would need to be vaccinated or have antibodies. 

Under the law, an employer can generally require its workers to be vaccinated and can also fire an employee who refuses to do so. Some notable exceptions, however, exist to the general rule. For example, if a work force is unionized, the collective bargaining agreement may require negotiating with the union before an employer can implement a vaccine requirement.

Anti-discrimination laws also provide some protections to workers that are disabled. Under the Americans with Disabilities Act (the ADA), workers who do not want to be vaccinated for specific medical reasons are eligible to request an exemption. In this case, an employer may need to provide reasonable accommodation, such as allowing the employee to work remotely. 

Another exception exists under Title VII of the Civil Rights Act of 1964. Under Title VII, if taking the vaccine would conflict with a sincerely held religious belief, a worker may be able to opt out of a vaccine requirement.

The initial FDA approval is expected to be an “emergency use authorization,” as opposed to full approval. The law is unclear as to whether one can mandate vaccinations based on an emergency use authorization. As such, employers may need to wait until the FDA completes the entire approval process before putting vaccination requirement protocols in place. 

Are Employers Responsible for Employees Contracting COVID-19?

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Are Employers Responsible for Employees Contracting COVID-19?

As more workers are venturing back into the workplace, many are concerned about their risk of COVID-19 infection as the coronavirus case counts continue to rise.

Should you contract COVID-19 at the workplace, you may be able to receive benefits through workers compensation. Workers’ compensation is an insurance program managed by the state. It provides pay and medical benefits to employees who have a work-related injury or illness. Not all employers provide workers’ compensation insurance, but most do. When an employee is injured or becomes sick because due to a work-related injury or illness, the “exclusive remedy” available is usually through workers compensation insurance.  

There are exceptions, however, to the exclusivity rule. These exceptions vary from state to state, but they generally include circumstances in which:

  • the employer doesn’t have workers’ comp insurance
  • someone other than the employer caused the illness, or
  • the employee became ill due to circumstances beyond the employer’s simple negligence, such as an intentional act or gross negligence on behalf of the employer.

In some states, the “intentional act” exception doesn’t apply unless the employer’s actions were specifically intended to harm employees. That could be nearly impossible to prove in the case of an employer’s failure to provide enough protection from a highly infectious disease like COVID-19.

In other states, the standards for the exception are more nuanced. For example, the Texas courts have held that the employer doesn’t necessarily have to mean to cause harm; instead, the exception may apply when there was a “substantial certainty” that the employer’s actions would result in injury or death.

One arguable example of gross negligence would be an employer who called its employees back to work and required them to work in close proximity to each other. Note, however, it is up to the injured employee to prove that the virus was likely contracted at work, and that could be a difficult hurdle to overcome as more businesses open and cases continue to rise. Even then, there are questions about whether certain claims would be granted.

Under the workers’ compensation program, an illness is covered only if it is contracted in the context of someone’s job. Illnesses such as the flu, which are referred to as “ordinary diseases of life,” typically aren’t covered. Whether COVID-19 is considered an ordinary disease remains an open question.