Will the COVID-19 Vaccine Be Mandatory at Your Workplace?

There's no doubt that the COVID-19 pandemic has turned lives and livelihoods upside down. While COVID-19 vaccines are considered key to safely returning workers to their jobs and kickstarting the economy, some employees are hesitant to get vaccinated. So, will the COVID-19 vaccine be mandatory at your workplace, or can you refuse to take the shot?

Already it's shaping up to be a divisive and, quite possibly, a litigious issue. If you have concerns about getting the vaccine for medical or religious reasons, here's what you need to know about workplace regulations and the COVID-19 vaccine.

Will the COVID-19 Vaccine Be Mandatory at Work?

Private U.S. companies have the legal right to enforce inoculation as a condition of employment in most circumstances, and 4.4% of employers have announced that they will require the COVID-19 vaccination, including Walmart, Facebook, and Tyson Foods. In the long term, getting a job or keeping your job could very well be determined by whether you agree to take the COVID-19 vaccine.

In some professions, vaccinations are already a job requirement. People who work in clinical settings like hospitals, nursing homes, or other facilities in which they're in contact with vulnerable populations are already required to receive a full schedule of vaccinations, including the COVID-19 vaccine. The U.S. Department of Veteran Affairs issued a vaccination mandate for healthcare employees, including physicians, dentists, podiatrists, optometrists, registered nurses, physician assistants, and chiropractors, and the Department of Defense will require U.S. troops to get the vaccine.

Additionally, President Biden issued a mandate that all federal employees and contractors get vaccinated or submit to regular Covid-19 testing. Here's what the latest mandate requires:

• All federal workers and contractors must get vaccinated, with limited exceptions.
• Private employers with 100 or more workers will have to require them to be vaccinated or tested weekly. Employers must provide paid time off for vaccination.
• Nearly 17 million healthcare workers in hospitals, clinics, and other facilities that accept Medicare and Medicaid payments must get vaccinated.
• Nearly 300,000 employees of Head Start early childhood education and other federal education programs must get vaccinated.

While some employers who want to prevent worksite outbreaks have indicated that they'll fire employees who refuse to get the vaccine, others have created policies to encourage rather than mandate inoculation. Companies have moved employees who aren't vaccinated to roles in which they don't have contact with the public or have offered bonuses to employees who agree to get vaccinated. And if you're thinking of not sharing your inoculation status, keep in mind that the latest mandate from the Biden administration requires vaccination for employees of the executive branch and contractors who do business with the federal government—with no option to test out. Private employers may enforce the same protocols.

The bottom line? "You can refuse to get a vaccine but you may face negative job consequences, including termination, depending on the reason for your refusal," warns employment expert Amy E. Feldman, general counsel of The Judge Group, Inc. If you're fired for refusing to be vaccinated, you could also be denied unemployment insurance.

COVID-19 Vaccine Exemptions

According to Feldman, employers do face some limits on their ability to fire you for choosing not to be vaccinated.

• Under the Americans With Disabilities Act, your employer is legally required to reasonably accommodate your inability to be vaccinated based on a medical condition. For example, if you have a severe allergy to a vaccine ingredient and your job can be performed outside your office, your employer might allow you to work from home.
• Under Title VII of the Civil Rights Act, you can refuse a vaccine based on a sincerely held religious belief.

If, however, refusing to be vaccinated would create an undue hardship for your employer, your company does not have to keep you employed, even if you have a documented exemption.

"So, for example, if your job involves providing care to elderly patients in a nursing home, then your job duties must be done at the worksite, and it would pose too great a risk to residents to allow an unvaccinated employee to work there," Feldman clarifies.

State Laws and Vaccine Workplace Protections

Depending on where you work, you may have additional job protections under state law. Federal law doesn't exempt workers who are just hesitant or afraid to take the vaccine but don't have a valid medical concern or religious convictions that prevent them from being vaccinated. But in some states, you have the legal right to refuse a vaccine on the basis of your philosophical beliefs.

Some states have limited the scope of vaccine mandates to apply only to state and local governments, which means that private employers can still issue requirements. Many of these cases apply only to vaccines that have emergency use authorization, which means that if the vaccines get full approval from the U.S. Food and Drug Administration, existing prohibitions on vaccines may no longer apply.

So, will the COVID-19 vaccine be mandatory under your state's laws? The states that allow additional protections based on personal beliefs are:

• Arizona
• Arkansas
• Colorado
• Idaho
• Louisiana
• Michigan
• Minnesota
• North Dakota
• Ohio
• Oklahoma
• Oregon
• Pennsylvania
• Texas
• Utah
• Washington
• Wisconsin

"But be aware, some states are considering the opposite approach," says Feldman. "For example, some states like New York have considered a legislation requiring everyone to receive the COVID-19 vaccine."

In other states, pending lawsuits may determine workers' rights to refuse vaccination. In New Mexico, a detention center officer facing termination for refusing to get the COVID-19 vaccine sued his manager and detention center officials over their mandatory vaccination policy on the basis that the none of the vaccines were, at the time, fully approved by the FDA.

"This case will be hard to win given that all vaccines were only approved for emergency use, and there were no alternatives that were fully approved,” Feldman says, “but the lawsuit illustrates that employers who mandate a vaccination policy for what they believe is for the good of their employees may not have employee buy-in—ending up in legal and cultural backlash.”

Talk to Your Employer About Accommodations

If the COVID-19 vaccine will be mandatory in your workplace and you have concerns about getting it, have a conversation with your boss. Be ready to provide an explanation for your refusal, and come prepared with suggestions for reasonable accommodations. For example, you might continue to work from home while vaccinated co-workers return to the office, or you might keep wearing a mask in your workplace even after mask mandates are lifted in your area.

While you prepare for a conversation with your employer, be sure to read up on the latest news on COVID-19 vaccine safety and efficacy from the Centers for Disease Control and Prevention.

Stay Up to Date on How COVID-19 Is Changing the Way We Work

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This article is not intended as a substitute for professional legal advice. Always seek the professional advice of an attorney regarding any legal questions you may have.