Can Employers Require the Vaccine? Legal Expert Answers

Managing the transition back into the office is proving to be a delicate dance for employers and employees

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More people are heading back into the office as the COVID-19 vaccine rollout broadens, but with the transition back comes tricky legal questions posed by both employers and employees.

Legal analyst Dan Eaton told NBC 7 employers are required to provide safe workplaces by law and if they think vaccination mandates will ensure that, they are within their rights to require vaccinations for employees.

So, can you be fired for not getting vaccinated? Eaton said yes – even if you’re hesitant to get the vaccine because of potential side effects.

“That’s not going to give you any kind of protection from potential repercussions if your employer decides to take that route,” he said.

But Eaton listed a few exceptions to the rule; workers who can’t be vaccinated because of a disability, or those with religious beliefs against vaccines could be excluded.

Under federal and state law, employers need to provide accommodations to employees who are unvaccinated before terminating them. The available options during the pandemic are open to dispute, but Eaton said employers must work with employees on trying to find a solution before pulling the plug.

“If push comes to shove, if no reasonable accommodation will enable an employee to perform the essential functions of his or her job, notwithstanding the lack of vaccination, then the next step is termination. But that has to be taken only after really a range of possible accommodations are explored,” said Eaton.

As some of us begin the transition back to work it’s important to pause and acknowledge that it’s another big change. Dr. Deborah Gilboa, the resilience doctor, hits on the emotions we can expect to experience—such as missing our remote flexibility we’ve just adapted to. Watch and get her great tips on how to move through this change in a healthy way.

So what sort of rights do employees have moving forward with this contentious issue?

Eaton said if you are opposed to getting the vaccine because of religious beliefs, a disability or medical condition and your employer doesn’t accommodate you, “then there is a potential claim for discrimination and potentially for retaliation.”

Eaton also pointed out that employers do have the right to ask whether employees have been vaccinated.

“Asking about vaccinations is not itself a violation of [The Health Insurance Portability and Accountability Act (HIPAA)],” he said. “Employers can in fact require employees to disclose whether and when they have been vaccinated for the purposes of determining whether they are in fact fully vaccinated and therefore subject to lesser restrictions than they otherwise would be if they were not.”

But Eaton said there are also some things employers legally cannot ask.

“What you can't ask, for example, is whether there were certain side effects as a result of the vaccine, or whether there were kinds of health complications,” he said.

The law may evolve to address the concerns of both employers and employees as we ease back into the workplace and learn more about labor laws’ complexities, Eaton said.

“There is going to be some sympathy when we're looking at returning to normal operations…by the people who ultimately may have to review these decisions, namely the courts and administrative agencies that enforce these laws,” he said.

But at the start, expect lawsuits challenging government guidance as well as mandates by individual managers.

“Everybody wants to know the black and white of rights versus duties. And do I have the right to do this or do I have the duty to do that?" Eaton said. "But the fact is that throughout this pandemic, we have all been in this together and we're all going to have to emerge from this together.”

State workforce regulators delayed a debate Thursday on when to drop COVID-19 safety rules for employees. The board is now aiming for mid-June to coincide with the lifting of the state’s mask mandate.

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