Should Employers Require Employees to Get COVID-19 Vaccinations?

Allen Smith, J.D. By Allen Smith, J.D. November 5, 2021

[Editor's Note: The 5th U.S. Circuit Court of Appeals in New Orleans has issued a stay temporarily blocking President Joe Biden's new COVID-19 vaccination-or-testing policy for businesses with at least 100 employees companywide. The Department of Labor's chief legal officer said in response, "We are fully prepared to defend this standard in court."]

The Occupational Safety and Health Administration's (OSHA's) emergency temporary standard (ETS) will give employers with at least 100 employees a choice: mandate vaccines against COVID-19 for all employees or allow employees to choose whether to be vaccinated or undergo weekly testing. To simplify matters, should employers require vaccines without the choice of regular testing? When making this decision, employers should take into account administrative issues and employee relations concerns.

The rule is clearly intended to make it so that the full directive—without a testing alternative—is the far easier option, said Jackie Gessner, an attorney with Barnes & Thornburg in Indianapolis. "Unvaccinated employees will need to submit to weekly testing, provide proof of a negative test and continue to wear masks in the workplace."

An employee who needs to be tested for COVID-19 requires frequent reporting and cataloging of confidential medical information, noted Hugh Murray III, an attorney with McCarter & English in Hartford, Conn. "There will inevitably be good-faith errors, both by employees who forget to get tested and by employers who lose track of the process," he said.

However, Daniel A. Schwartz, an attorney with Shipman & Goodwin in Hartford, Conn., said employers that decide to allow for testing will face significantly lower legal challenges to the vaccination directives. Employers that have required the vaccine have faced many employees who seek religious exemptions; the ETS allows employers to avoid that fight altogether, he noted.

Martha Boyd, an attorney with Baker Donelson in Nashville, Tenn., said the biggest downside of offering employees a choice between vaccination and regular testing is the cost of testing, which employees will bear under the ETS unless a collective bargaining agreement or another law requires the employer to pay or the business chooses to pay.

"There are a lot of employees who remain skeptical of and unwilling to get the vaccine for a variety of reasons," she said. Some employees may be persuaded to get vaccinated if testing is not an option, but some may be willing to risk their jobs because of their concerns about the vaccine.

"This has been a rather complex poker game," Boyd said. "Employers and employees are both having to decide whether to call the other's bluff on this issue."

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Giving Employees a Choice

Even if employees have a choice between vaccination and regular testing, there may be worker pushback.

Some employees will claim that testing violates their individual rights or violates a sincerely held religious belief, Boyd said. "We have already reviewed numerous requests from employees for exemption from testing requirements based on [workers'] belief[s]," she stated.

Boyd added that she was concerned that having employees regularly tested may lead workers to stop reporting symptoms based on the employees' assumption that if they have contracted COVID-19, the next test they have will detect it. "Testing should not be a substitute for employees continuing to self-monitor for symptoms and to immediately notify their employer and isolate themselves if they experience symptoms of COVID-19," she said.

Dustin Stark, an attorney with Akin Gump in New York City, added, "Employees who are vaccinated may feel that, by allowing other employees to remain unvaccinated while a vaccine is available, the employer is not taking all safety precautions available to protect its employees."

Unvaccinated employees may complain, too, as "COVID-19 testing is unpleasant and a hassle," said Robin Shea, an attorney with Constangy, Brooks, Smith & Prophete in Winston-Salem, N.C.

Requiring Vaccines Only

At health care facilities that have required vaccines, some employees resigned rather than getting the vaccine, Shea noted.

"Others are remaining at work until the employer terminates their employment," she said. "Still others are seeming to hang tough but then giving in and getting vaccinated at the eleventh hour."

For employers that insist on vaccination or termination, Shea would expect negative publicity on social media and possibly in-person protests and labor disputes.

"I have also read that some health care employers that took a hard line on vaccination are now facing shortages of qualified personnel," she said.

Nonetheless, Murray said that "early stories about employees quitting rather than being vaccinated seem to indicate that less than 1 percent of the workforce is willing to quit the job for this reason."

Testing offers less protection than does vaccination to the workplace and employees, said Robin Samuel, an attorney with Baker McKenzie in Los Angeles. "Testing is a snapshot in time. It tells you only if the employee is infected at the time the sample is collected," he noted.

Employers that require vaccines will have to deal with religious and disability-related exemption requests, some of which require careful handling, he said.

Shea said disability-related accommodations should be relatively straightforward.

"Religious exemptions are more difficult because there are several hurdles. Is the employee's objection really religious in nature, as opposed to, say, concerns about the safety of the vaccine or political objections? Is the employee's religious belief sincere? If the answer to both of these questions is yes, there is yet a third question: Would this accommodation be an undue hardship for the employer?" she noted.

'Difficult Choices'

"The ETS provides cover to employers who want to require vaccination in order to reduce shutdowns, outbreaks, costs and disruption, or who believe vaccination is the best way to protect their employees," Samuel said. "But it also creates some difficult choices for employers in terms of the testing option."

Employers may be blamed, even if they are just the messenger, he noted.

"Will the OSHA ETS be pared back, struck down or delayed by the courts?" Stark asked. Legal challenges to the ETS have been brought on constitutional grounds, as some view the ETS as an overreach of executive authority.

"Overall, no matter what employers do, they won't be able to make all of their employees happy, and so they should just do what they believe is the best choice for most of their employees," Samuel said.



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