Can Employers Require the COVID Vaccine? And Other Questions—Answered

The science is clear: COVID-19 vaccines drastically reduce the chance of hospitalization or death from the disease and will help us get out of the pandemic that’s claimed hundreds of thousands of lives in the U.S. But even so, months after the shots became available for all adults in the country, tens of millions remained unvaccinated.

That brought us to a new moment in the public health crisis: vaccine mandates. To boost the number of vaccine takers, President Joe Biden announced in early September 2021 that all large, private employers with at least 100 employees will have to require that their workers get vaccinated or otherwise face weekly testing.

Though school and healthcare workers have long been required to get vaccinated for a number of diseases—like measles, mumps, and rubella (the MMR vaccination) or even the flu—the upcoming COVID requirements are much more extensive in nature. “We’ve had vaccine mandates before, but they haven’t been quite as broadly applied,” says Carmel Shachar, the executive director of the Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics at Harvard Law School. Because of this, it’s not immediately clear how they’ll work.

The details of Biden’s new policy—to be set by the Occupational Safety and Health Administration (OSHA)—haven’t yet been published, as of this writing in early October 2021. And it’s not clear when exactly they’ll be released; the White House COVID-19 coordinator Jeffrey Zients said in early September that those regulations would arrive in the “coming weeks.”

“There’s a lot of unknowns about what’s going to be included in that standard,” says Samantha Monsees, an attorney with Fisher Phillips LLP in Kansas City, Missouri. She adds that legal challenges to the mandate and the president’s authority to put it in place are anticipated. Arizona’s Attorney General Mark Brnovich, for example, has already sued over the forthcoming policy. On the other hand, the White House announcement might spur companies that haven’t already done so to require the COVID-19 vaccine regardless of Biden’s rule.

So what does this all mean for you and your job? We’ve compiled a guide to answer your most pressing questions about COVID-19 vaccine requirements in the workplace. We’ll tell you what your rights are as well as what to do if your employer isn’t implementing or enforcing a mandate.

At first, many employers were offering incentive programs to encourage their workers to get the vaccine. But “those unfortunately did not move the needle very much for a lot of employers,” Monsees says.

Many large employers are already mandating a vaccine—Amtrak, Equinox, Facebook, Goldman Sachs, and Google, to name just a few. United Airlines said more than 99% of its workers have been vaccinated under its rule—and after the company indicated that nearly 600 of its employees faced termination for noncompliance, the number dropped to 320 within 48 hours as employees took steps to comply and avoid getting fired.

All federal workers are required to be vaccinated, and Biden signed an executive order requiring federal contractors to get vaccinated as well. Some 300,000 teachers under the federally funded program called Head Start and most health care workers must get vaccinated. State and local governments have issued a variety of rules for workers, teachers, and health care employees. Several colleges and universities are also requiring vaccination.

In most situations, yes. “The law around vaccines is relatively settled as medical legal questions go,” Shachar says.

Employers, in part, have the power to require vaccines on the basis that unvaccinated workers pose a “direct threat” to other employees or the public. Health care employees in particular could pose a danger to patients if they reject vaccines. For COVID-19 specifically, unvaccinated teachers and child care workers are a safety risk for children, since those under 12 don’t yet have access to a vaccine. Universities, too, have long required vaccines to protect students and workers, especially since diseases can spread quickly in dorm settings.

Even beyond those specific work environments, many employees are at will, allowing companies to require a lot of you to keep your job. That includes mandating vaccines as a condition of employment, including the COVID-19 vaccine, as long as they follow the Americans with Disabilities Act and Title VI of the Civil Rights Act, Monsees says. Those laws require employers to make exceptions to a vaccine requirement for those with a medical condition that precludes them from getting the vaccine or if a person has a “sincerely held religious belief” against a vaccine, including for COVID-19.

Most employees can anticipate they’ll fall under Biden’s broad vaccine push. “Where it won’t potentially apply are...state employers,” Shachar says. Biden’s rule is directed at private employers, meaning mandates for city and state government workers are up to local leaders. So, for instance, Texas Governor Greg Abbott has already said he won’t implement a vaccine mandate—and will in fact ban any government entity in the state from doing so. But in New York City as well as New York state, government workers do have to get vaccinated. In addition, small private employers with fewer than 100 employees are also not set to be covered by the federal mandate, though they could still choose independently to require the vaccine.

Yes—just as employers can require existing employees to get vaccinated, they can require new hires to adhere to the same rules as a condition of any job offer. Problems may pop up related to how exactly an employer asks a prospective employee about their vaccination status or qualification for an exemption. But “just requiring the vaccine itself, there’s not a very strong basis at all for an employee to challenge that in a court,” Monsees says.

Yes, but applicants are also protected under the Americans with Disabilities Act and Title VI during the hiring process. That means an employer can’t reject you based on a disability or your religious beliefs.

The firm where Monsees practices advises employers to ask straightforward, yes or no questions to avoid collecting disability or religious information. Such a question could be in a written application and phrased like, “‘Are you vaccinated or do you have a valid exemption based on a disability or sincerely held religious belief—yes or no?”

“It keeps the answers very close-ended,” Monsees says. “The employer doesn’t want to be in a position where they’re accused of making a hiring decision based in part on that information that they received.”

Yes, if the employee doesn’t have a valid exemption.

Employers will likely request proof in some form—like your physical Centers for Disease Control and Prevention (CDC) vaccine card issued by the provider who gave you the shot. Some digital options already exist as well. In New York, for example, you can upload your vaccine records in two different apps for proof of vaccination and show the app to get into restaurants, bars, music venues, or other indoor entertainment venues. Walgreens and CVS also offer digital vaccination cards to those who were vaccinated at their locations.

It’s unlikely that you’d have to take antibody tests to show vaccination, according to Shachar. But now that booster shots have been approved for some individuals—including those who are over 65, have certain underlying medical conditions, or live or work in high-risk settings—Shachar says companies might request updated immunization information.

Once Biden’s new rule goes into effect, Monsees anticipates there will be grace periods to allow for people to get vaccinated or for employers to put testing protocols in place. That would allow for employees to find time to get the first and second dose, if opting for Moderna or Pfizer. Just a reminder: You aren’t fully vaccinated until two weeks after your final dose.

An employee requesting an exemption would have to provide information from a health care provider or evidence of a religious belief.

But you can’t just get any evidence. “I can’t just make up a religion and say I’m [a part of] The Church of the Flying Spaghetti Monster,” says Shachar, referring to the satirical “church” that became an early meme of the mid-aughts. If an employer has doubts, they might ask whether you’ve gotten previous vaccinations. One Arkansas hospital, for instance, had employees who requested exemption on the basis that COVID-19 vaccines had been tested on fetal cell lines developed over several decades. But the same research method has been used in common over-the-counter medications, like Ibuprofen and Tylenol. The hospital ultimately asked the employees who requested an exemption on that basis to attest that they’d also abstain from common medicines developed in that way. Shachar says she expects employers will ask those kinds of questions to determine whether an employee’s belief is sincere.

And there’s another factor: The employer can deny exemption requests if it determines the accommodations necessary would be an “undue hardship.” Take, for instance, a company that has to require weekly tests of all workers who opt out of the vaccine due to an exemption request under Biden’s rule. The employer could determine that weekly testing is too burdensome to follow through. Who exactly will pay for the testing is still unknown. Monsees anticipates some employers may feel pressure to mandate the vaccine with no testing option if they are required to bear the testing costs. “Even though those employees may have a valid, sincerely held religious belief, the company could deny that request because it’s just too expensive for them to comply,” Monsees says.

It isn’t clear how the new Biden administration mandate on private employers will work for remote employees, since the details of the rule haven’t yet been released. But Muse career coach Kaila Kea-Lewis has so far seen private employers allow full-time remote workers more flexibility to opt out, while government workers usually have to get vaccinated regardless of whether or not they work remotely.

Your direct manager or supervisor would be a good place to start, Kea-Lewis says. Another important contact would be the human resources department, since HR would typically set the policies and communicate to supervisors about how to interpret and enforce them.

Kea-Lewis says you should phrase questions with clear and specific language. A question like, “What’s going on with the vaccine mandate?” may not be clear enough. Instead, try asking, “Will the company require employees to be vaccinated?” and, “If so, what does the timeline for that look like?”

There’s a chance that the company has already posted its COVID vaccination policies online—or included it in the job posting itself. If it’s a large company, their policies may have even made the news. So double check the company’s own channels and other reputable sources first.

Otherwise, it’s important to ask such questions directly during the first face-to-face interview, Kea-Lewis says, like an in-person interview or a Zoom interview (not the initial phone screen). You could ask directly what their vaccine policies are or how they’re enforcing such a rule. For example, you might ask, “What has your process been for talking through any questions or concerns about safety or vaccine policies with current employees?”

“This is something that everyone wants to know about, it is really important, and it’s really gonna make a difference in the decision that you make about moving forward with the company,” Kea-Lewis says. “Try to get as much information as you can about it directly from them.”

Again, Kea-Lewis says a direct approach is helpful. Ask those clear and specific questions—like the ones referenced above or others such as, “What steps is the company taking to prevent infections in the office and keep employees safe?” or, “Who is responsible for setting our policies around vaccination and COVID safety?” You can also use any company-issued emails, directives, or handbooks to reference when you’re asking about vaccine mandates or other measures. For instance, you might say, “The company-wide email that went out last month stated that only vaccinated employees can work on-site. How will that rule be enforced?”

Coordinating with your coworkers may be more impactful than working alone. Think: “How can we join forces and then bring this issue to leadership so that we can ignite a change?” Kea-Lewis says. “Not to say that you can’t do it on your own—you absolutely can. But again, there’s strength in numbers.”

Speaking up as soon as possible is also key to avoid sending a message that your employer can drag its feet on addressing the issue. “Move with a sense of urgency so that you can encourage leadership to move with a sense of urgency,” Kea-Lewis says.

One potential option may be to push for more long-term or permanent remote work options, Kea-Lewis says. Try “requesting what you want, doing so firmly, but also tying it back to your contribution to the organization.” (If you need help preparing to ask for permanent remote work, we have a worksheet, email templates, and script you can use.)

Communicating to your employer that the inconsistent enforcement of COVID safety rules makes you uncomfortable or concerned about how it could impact your health or your family’s could be an argument for more flexible accommodations, especially since so many employers had little choice but to institute remote work setups during the pandemic—and seen that employees can be just as (if not more) productive.

If the company is specifically required to have a mandate under Biden’s rule, you could also file a complaint with OSHA, since that’s the agency writing the regulations.

And if you’ve exhausted all options and your situation hasn’t improved, it may be time to start looking for another job that is a better fit, Kea-Lewis says. “If you think this is something that’s really important and the company doesn’t, that’s not a great value fit.”