Can employers require employees to get vaccinated?
Employers need to consider a variety of issues when contemplating mandating COVID-19 vaccinations. There are good points and not so good points. One way to evaluate the ethical issues is by applying the cost-benefit analysis approach to ethical decision making, known as utilitarianism.
The benefits revolve around protecting everyone in the workplace by mandating vaccination. Ethical behavior requires use to act for the common good. This means to assume a society comprising individuals whose own good is inextricably linked to the good of the community. Community members are bound by the pursuit of common values and goals.
Requiring vaccination also protects individual workers. Just imagine if someone(s) does not get vaccinating and then tests positive for the virus. This means a significant amount of downtime from isolation; a decline in productivity; and failure to meet the needs of customers who expect timely delivery of a reliable product.
Let’s look at the costs. Some say that forcing vaccination stifles free speech—the freedom to decide what’s best for the individual and family. Some question the right of the government to make that decision for an employer. I don’t agree that free speech is stifled in part because in many workplaces, employees can opt out of the vaccination program by being tested for the virus weekly or more often or meeting certain exemptions for religious reasons or to accommodate those with designated disabilities.
The Equal Employment Opportunity Commission (EEOC) indicates that a mandatory vaccination program is not prohibited under federal anti-discrimination laws but must account for potential accommodation obligations and other legal nuances. We can expect more litigation in this area, especially as more employers implement mandatory vaccination policies.
Most importantly, employers must understand and comply with their duty to accommodate an employee’s sincerely held religious belief or disability. Employers also need to be aware of the latest guidance with respect to accommodations and the interactive process to ensure they are complying with their legal obligations.
Under the Americans with Disabilities Act (ADA), employers must provide reasonable accommodations to qualified employees with a disability, unless the employer can demonstrate the accommodation would create an undue hardship. Reasonable accommodation may include appropriate adjustment or modifications of employer policies, including requirements imposed by a mandatory vaccination policy.
Employees may be entitled to another kind of reasonable accommodation in the mandatory vaccine context as well. Under Title VII of the Civil Rights Act of 1964 (Title VII), employers must provide accommodations for an employee’s sincerely held religious belief when it comes to vaccine requirements. Again, the law does account for exceptions related to the employer’s undue hardship.
Employers Requiring Vaccination
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.
Many companies have encouraged employees to get vaccinated rather than requiring them to do so. Target, for example, has provided 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 has offered $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.
I’m not a fan of providing a monetary or other incentive to those in the workplace to encourage them to get vaccinated. My problem with it is those who have already been vaccinated get no such benefit. It’s unfair to provide a benefit to those who do not act in the common good while not doing so for those who do act in the common good.
Vaccination and the Hiring Process
Employees may ask whether it would be appropriate to let an employer know that they have been vaccinated. This can help to strengthen your workplace position and when you look for a job. The coronavirus virus is likely to be with us for a while, at least in the form of variants. Some employers may look more positively on employees who have been vaccinated as it adds to the safety of all workers.
Experts were interviewed by the Washington Post about their views on the pandemic. Art Caplan, a professor of bioethics and head of the division of medical ethics at New York University School of Medicine, thinks the vaccine will become “a ticket to hiring.” “Some businesses are going to be able to make a convincing ethical case that you better be vaccinated to protect your co-workers and protect your customers,” he explained. “I think it will become pretty routine.”
Sharing vaccination status with an employer is also legal. Some candidates may even think it makes sense to offer that information when applying for certain jobs, particularly ones that involve significant travel, sales or interacting with the public.
The ongoing Covid pandemic has raised many questions about where and how we work, but one question has become more pressing for job seekers in recent months: do they need to include their COVID-19 vaccination status on their resume?
ResumeBuilder.com interviewed 1,250 hiring managers in August and found that 33% would automatically eliminate resumes that don’t include a COVID-19 vaccination status. On top of that, 69% of hiring managers said they are more likely to hire someone who has already been vaccinated against COVID-19, and 63% said they prefer to see a job candidate’s vaccination status on their resume.
Some companies have begun requesting vaccine information from their employees and introducing their vaccine requirements during the hiring process. As more offices adopt vaccine mandates, disclosing your vaccination status on your resume can only help you in the interview process.
Job seekers can include their vaccination status as a short line, for example, writing “fully vaccinated” underneath their contact information or as a footnote at the bottom of their resume where it’s easy to find.
Is Vaccination a Legitimate Job Requirement?
When an employee has not been vaccinated, the employer must be careful not to probe as to why, particularly in situations in which vaccinations are voluntary and not required for the job. “What we are cautioning employers not to do is to ask for additional information,” said Kadish. He explained that further questioning could inadvertently lead to a medical inquiry protected under the ADA. “Those types of medical inquiries are only permitted where they are necessary for the job,” he said.
Employers can legally require employees to get vaccinated, assuming they can establish it is a legitimate job requirement and assuming they make reasonable accommodations for workers who cannot take the vaccine because of disabilities or religious reasons.
“The thought process is the vaccine stops people from having severe illness or developing severe complications from COVID-19, and so it could help the individual from becoming a direct threat to themselves or others in the workplace,” Kadish said.
Are these Vaccine Questions Ethical?
It depends on who you ask. Libertarians might say employers have no right to become involved in one’s personal decisions. Caplan said that although employees are under no moral obligation to answer the vaccine question, “I think employers can and will be asking. It’s going to become more routine, particularly with vaccines starting to get more widely distributed. They’re going to ask, ‘Have you had covid?’ ‘Have you been vaccinated?” He said that some businesses will want to be able to say their workers are vaccinated.
Having more employees vaccinated is good for society. It contributes to herd immunity. It protects society in general. It is the right thing to, if not for oneself than for one’s loved ones and those in the workplace.
Can employers ban employees from the workplace if they refuse to get vaccinated?
Yes, according to updated EEOC guidance, but subject to reasonable accommodation obligations and if employers do not treat employees differently based on protected characteristics. Working with employees to address concerns regarding the vaccine and to ensure legal compliance is a better approach.
The CDC has issued guidance for fully vaccinated people, which it continues to update. The CDC’s guidance recognizes that employers may have their own workplace rules that may apply to fully vaccinated employees. OSHA’s COVID-19 guidance incorporates the CDC’s recommendations.
Employers must also continue to comply with state and local regulations concerning COVID-19 and public health, including mask mandates or other infection prevention and control measures.
Posted by Dr. Steven Mintz, The Ethics Sage, on October 14, 2021. Steve is the author of Beyond Happiness and Meaning: Transforming Your Life Through Ethical Behavior. You can sign up for his newsletter and learn more about his activities at: https://www.stevenmintzethics.com/. Follow him on Facebook at: https://www.facebook.com/StevenMintzEthics and on Twitter at: https://twitter.com/ethicssage.