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Tuesday, Jun 22, 2021
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USA: Employer Can Require Employees to Be Vaccinated

USA: Employer Can Require Employees to Be Vaccinated

Companies can require workers entering the workplace to be vaccinated against the coronavirus, according to recent U.S. government guidance.

As many Americans prepare to head back to the office, companies are hammering out policies on the extent to which they will require, or strongly encourage, employees to be vaccinated against the coronavirus.

The bottom line is that companies are legally permitted to make employees get vaccinated, according to recent guidance from the federal agency that enforces workplace discrimination laws, the U.S. Equal Employment Opportunity Commission.

Here’s the latest about the rules in the United States on vaccinations in the workplace.

Employers can require employees to get vaccinated and offer incentives to do so.

Federal laws do not prevent companies from requiring employees to provide documentation or other confirmation of vaccination, though they must keep that information confidential. Employers can also distribute information to employees and their family members on the benefits of vaccination, as well as offer incentives to encourage employees to get vaccinated, as long as the incentives are not coercive.

If an employee will not get vaccinated because of a disability or a sincerely held religious belief, the agency said, he or she may be entitled to an accommodation that does not pose an “undue hardship” on the business. The agency said examples of reasonable accommodation could include asking the unvaccinated worker to wear a face mask, work at a social distance from others, get periodic coronavirus tests or be given the opportunity to work remotely.

Still, the Equal Employment Opportunity Commission guidelines recommend employers to keep in mind that some individuals or demographic groups may face more barriers to receiving a vaccine than others.

In addition to private companies, government entities such as school boards and the Army can require vaccinations for entry, service and travel, a practice that follows a 1905 Supreme Court ruling in Jacobson v. Massachusetts that allowed states to require people to be vaccinated against smallpox. That decision paved the way for public schools to require proof of vaccinations from students.


Isn’t this a HIPAA violation?

The Health Insurance Portability and Accountability Act has protections for patients’ confidential health information, but it covers what your health care provider can share with others, rather than employers and what they can ask for.


Then why do many businesses remain hesitant about requiring vaccinations?

A Rockefeller Foundation and Arizona State University survey of more than 1,300 medium and large companies in the United States and Britain found that more than half said they would require employees to show proof of vaccination. Nearly nine out of 10 said they planned to encourage or require employees to get vaccinated, the survey found.

But while it is legal to mandate vaccinations, many companies are avoiding the thorny issue. Some companies don’t want to create mandates until the coronavirus vaccines have received full approval from the Food and Drug Administration, which has so far granted only emergency-use authorization to the three vaccines in use in the United States. Others, including hospitals, have refrained from issuing guidance to avoid lawsuits.

Houston Methodist, a hospital in Texas, is facing a lawsuit from more than 100 people after it told employees they all had to be vaccinated by Monday. Dozens of staff members gathered outside the hospital system’s Baytown location on Monday, holding signs that read “Vaxx is Venom” and “Don’t Lose Sight of Our Rights” in protest of the policy. On Tuesday, nearly 200 of the employees were suspended, and the hospital said if they did not get vaccinated by June 21, it would start the process to end their employment.


There is some murkiness, since the rules vary state by state.

In theory, federal law should trump state law, but the situation is tricky: The recent guidance mostly functions as a reminder that federal equal employment opportunity laws do not prohibit employers from requiring vaccines. But states have been staking out their own paths.

In South Carolina, for example, state agencies can encourage employees to get vaccinated, but they cannot require them to be. They also cannot require South Carolinians to provide proof of their vaccination status as a condition for receiving government services or gaining access to any government buildings, following an executive order by Gov. Henry McMaster, a Republican.

On Monday, Gov. Greg Abbott of Texas, also a Republican, signed a law prohibiting businesses or government entities in the state from requiring digital proof of vaccination, joining states such as Arkansas and Florida. It is not clear whether the new law will affect Houston Methodist’s mandate that employees be vaccinated.


Which major companies have said they are requiring employees to be vaccinated?

Many companies are encouraging employees to get the jab rather than requiring them to do so. Target, for example, is providing up to four hours of paid leave for employees to get vaccinated, and covering taxi rides to and from the appointments. The supermarket chain Kroger is offering $100 to all associates who provide proof of vaccination. Salesforce, the software giant, will allow up to 100 fully vaccinated employees to volunteer to work together on designated floors of certain U.S. offices.

Delta Air Lines said last month that it would require new hires to be vaccinated but exempt current ones, becoming one of the first major companies to do so. United Airlines also said that it would require new hires to provide proof of vaccination within a week of starting, but would make exceptions for people who had medical or religious reasons for not getting vaccinated. It is giving three days of extra vacation to flight attendants who have received at least their first vaccine dose by Wednesday.
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