Can Businesses Mandate Vaccinations?

May 4th, 2021

As we enter May, we have finished with the need to register for a COVID vaccine and then wait for the opportunity to schedule an appointment.  Now, there are more vaccine doses available than there are people coming forward.  Scheduling no longer involves long waits, and the previous prioritizing of who can get shots has been discarded in favor of an open invitation to all, including teenagers.

There is, as of yet, no law in effect requiring people to get vaccinated.  As a result, many are choosing not to get vaccinated – including those who already have antibodies from prior exposure, as well those who are mistrustful of the vaccines available.  But many businesses now wonder whether they can require their reluctant employees to get vaccinated, or even limit their interaction with the public to those who can show proof of vaccination.

Generally, the mere fact that an employee would prefer not to get vaccinated does not give the employee a right to refuse an employer-imposed condition of continued employment.  While an employee cannot be compelled to get vaccinated, he cannot compel his employer to continue to employ him, either.  So if the employer says that those who refuse the shots will lose their jobs, that rule can usually be enforced.

The federal Equal Employment Opportunity Commission (EEOC) has weighed in on the pro-vaccination side, advising that imposing a vaccination requirement will not subject an employer to per se liability under the Americans with Disabilities Act (ADA).  This means that vaccination requirements can be imposed and enforced.  But an employer must still remain flexible for any employee who might actually have an unusual risk of adverse reaction to the vaccine, as this might well qualify as a protected disability.  When any such situation might arise, the affected employer should immediately consult with its lawyer, to avoid potentially costly missteps.

Employers must also bear in mind that if they mandate getting shots, they are essentially assigning their employees a work-related task.  Thus, employees’ time spent getting shots they did not otherwise want will have to be compensated the same as if the employees were working at the place of business.  Employers must pay for the time expended, and minimum wage and overtime laws apply.  (Bear in mind that as of May 1, Virginia has substantially increased the state minimum wage to $9.00/hour.)  Paid time off may not be debited, either.

To steer around these pitfalls, many businesses are avoiding total mandates, and instead leaning more towards incentivizing vaccinations.  Modest bonuses, paid time off, or more creative benefits have met with some, though not total, success.  Yet because some health-intensive businesses (such as restaurants) may want to assure their customers of a totally safe environment, incentives that depend on employee acceptance may not always prove wholly successful.  In some cases, mandates may appeal to the business as the best available option.

Imposing limitations on customer interactions can run into some of the same difficulties.  The ADA requires businesses to deal with those with disabilities the same as they do with all other members of the public.  But the main reason to avoid the use of “vaccination passports” or other gateway screening is not legal, but purely business-oriented.  The COVID era has been hard enough on businesses already.  Letting fear drive away a substantial portion of your potential customer base is probably a luxury few can afford.