There are a lot of controversies currently surrounding vaccinations or at least whether or not they can and should be required by businesses in the U.S. Around the globe so-called vaccine passports as well as mandates have sparked protests and serious conflict.
In the U.S., now many employers have said they will require their employees to have a COVID-19 vaccine before they return to work.
Major companies like Walt Disney World have announced the requirements, and now, a lot of private companies also say they’re going to ask customers to show proof of vaccination as well.
In New York City, it was just announced that vaccine passports would be required to go into certain businesses and venues.
As the first city in the country to require proof of vaccination, Mayor DeBlasio said it would apply to indoor dining, gyms, and performances. You would have to show your CDC vaccination card or use the state’s Excelsior Pass.
The Mayor spoke at a press conference saying his objective was to increase vaccinations rather than reverting to old methods like mask mandates.
Despite that, public officials are once again urging even vaccinated people to wear masks in indoor locations.
Many are questioning what rights businesses have in these situations. Companies are accustomed to facing issues of liability, but this is somewhat uncharted territory. For example, questions might arise about what would happen if you didn’t require employees and customers to get vaccinated and then someone became sick. Could employees and customers potentially make a personal injury claim against a business?
There are some things we don’t know yet, at least as far as how they might play out in future legal cases, but the following are some of the things we do know about businesses and vaccines requirements.
Larger employers are starting to work to take steps to either require their employees to get vaccinated or if not, get regularly tested for COVID. The U.S. Department of Veterans Affairs recently announced a mandate for health care workers, and President Joe Biden also announced his administration requires federal employees to be vaccinated or get tested.
A vaccine passport is a document showing that someone has been fully vaccinated against COVID-19. These are used to regulate international travel in some cases or to prevent unvaccinated people from entering certain spaces.
States like New York and Hawaii already have some form of a vaccine passport, in that residents can upload their vaccine credentials and then access and show them digitally.
In general, private employers might be able to require a COVID-19 vaccine or a passport program unless there is something in state or local law preventing them from doing so.
There is not anything in the federal law right now that prevents an employer from mandating COVID-19 vaccines in their business.
The EEOC recently updated their technical assistance to specify that under federal law, employers can require all employees who enter the workplace be vaccinated for COVID-19. They do have to make reasonable accommodation and keep disparate treatment considerations in mind, however.
A recently dismissed district court lawsuit was brought by hospital employees who were required to vaccinate as a condition of their employment.
The court rejected the employees’ argument that the requirement would violate federal statute regarding emergency use authorization and the federal regulation about informed consent for human subjects.
In that case, the court also went on to say that the vaccine requirement was in line with public policy.
By contrast, it’s very possible that state and local laws can prevent you from requiring vaccines.
For example, there’s at least one state that prevents employers from refusing employment or discriminating against someone due to vaccination status. If it’s something you’re considering, you need to make sure you comply with state and local laws.
In Florida, Governor Ron DeSantis issued an executive order in April that prevents businesses from asking customers to show proof of vaccination to receive service.
Incentives Could Be Another Option
If you have a business, but you don’t necessarily want to require employees to get a vaccine, another way to compel them could be offering incentives. This may seem more appealing and less controversial to your employees.
According to guidance from the EEOC, an employer can incentivize an employee to confirm their vaccination status voluntarily, but there are limitations.
For example, an employer can’t incentivize an employee in exchange for their family member getting vaccinated by the employer.
Also, if someone can’t be vaccinated because of a disability or religious belief may be able to seek accommodation that would then entitle them to the same incentives that you offer to other employees.
Ask Your Employees Their Thoughts
There’s a lot for businesses to think about right now. As was touched on, it’s not just their employees they’re thinking about requiring to be vaccinated.
Several high-end restaurants in New York City announced they would require customers to be vaccinated for indoor dining, even before the city’s large-scale announcement.
If you aren’t sure what’s right for your employees and your business, consider asking them. It’s a good time to conduct a survey and ask for feedback on what people’s attitudes about vaccination are right now.
Could FDA Approval Help?
Some businesses say they’re going to wait until there’s at least one vaccine with full FDA approval before they require it. Currently, the three available vaccines in the U.S. only have emergency use authorization.
A Kaiser Family Foundation survey found three in 10 unvaccinated respondents said they’d be more likely to get it if there was one approved.
The labor market is challenging for employees on the flip side of all of this right now, and many employers are having a hard time finding workers. That’s leaving them to think that maybe it’s not the right time to add an additional hurdle for employment.
As far as the legality, it’s largely legal to require your employees and even your customers to get vaccinated, but that doesn’t mean it’s the right choice for every business.