Should Employers Mandate Employees Get the COVID-19 Vaccination?

By Timothy F. Murphy

Skoler, Abbott & Presser, P.C


Employers have a key role to play in ensuring that the successful roll-out of COVID-19 vaccines and that people are safe at work. Many employers may wish to adopt vaccine mandates, especially if their employees work in close contact with others. But before doing so, employers need to consider a number of things.

Can Employers require vaccinations?

 Yes. Nonunion employers can unilaterally require employee vaccinations because employment relationships are “at-will” and they have a legal duty to provide a safe and healthy workplace. Many employers already require workers to get inoculated against certain infectious diseases.

Can Employees object to vaccine mandates?

 Yes. Anti-discrimination laws provide to disabled and religious employees legal protections from vaccine mandates. Employers that require employees to receive the Covid-19 vaccine must meet certain requirements under those laws.

 Disability and Religious Considerations

 A worker with a covered disability may seek an exemption from a vaccine mandate. For instance, medical advice to avoid a vaccine due to an employee’s underlying health condition may legally justify a vaccine refusal.

 In such situations, the employer must explore whether an exemption is a reasonable accommodation given the disability and job duties – so long as it isn’t an undue burden for the employer. Accommodations – like telework or working in isolation from coworkers – that would allow the unvaccinated employee to perform essential job functions would likely not be an undue burden.

According to recent EEOC guidance, sincerely held religious beliefs may also justify a vaccine refusal. An employer must provide a reasonable accommodation “for the religious belief, practice, or observance” that prevents the worker from receiving the vaccine, unless that accommodation poses more than a “de minimis” cost or burden. Employers may only seek verification of such beliefs if they have an objective reason for doing so.

 Government Vaccine Mandates Appear Unlikely For Now

 A general state vaccine mandate does not appear to be in the cards anytime soon. On the federal level, President-elect Biden has signaled that he is not considering a vaccine mandate at this time. It also appears unlikely that the federal agency charged with workplace safety, the Occupational Safety and Health Administration(OSHA), would require employers to mandate a Covid-19 vaccine. In the past, OSHA has permitted employers to require employees to receive the flu vaccine.

 Public Health Experts Warn Against Mandates for Now

 Even if employers can legally mandate Covid-19 vaccinations, U.S. Surgeon General Jerome Adams recommends against it. “Right now, we are not recommending that anyone mandate a vaccine,” Adams said in a recent interview with Yahoo Finance, adding that “This (Pfizer’s) vaccine hasn’t been fully approved yet.” According to Saad Omer, a vaccinologist and infectious disease epidemiologist at Yale University, “Mandates shouldn’t be the front-line policy option.”

 Avoid the Backlash

 A vaccine mandate could trigger employee morale issues. Vaccine hesitancy is a concern across the country. One study revealed that more than one-third of Americans would refuse a Covid-19 vaccine if offered one. However, other data suggests that Americans’ willingness to take a COVID-19 vaccine has risen as data on the vaccines’ efficacy have emerged. Many people have said they are more comfortable waiting a few months to get the vaccine. Employers need to be sensitive to employee concerns if vaccination is mandated as soon as it becomes publicly available.

 Reduce Potential Legal Liability

 Employees injured by a mandated vaccine may bring legal claims for workers’ compensation, negligence, and OSHA violations. It is difficult to predict the success of such claims. The ability to argue that government recommendations were followed would go far in defending against them. Limiting a vaccine mandate to high-risk positions or workplaces may also reduce potential legal liability and employee backlash.

 Wait and See Is the Way To Go

 Most Massachusetts non-health care employers and their employees are not going to have access to any vaccines before the Spring of 2021. So most employers can wait to decide to mandate vaccines as there just won’t be vaccines available.

 In the meantime, employers should be prepared to:

  • Provide reliable information.
  • Reinforce other steps to protect employees and the public like continued screening, fitness for duty programs, and contract tracing.
  • Implement employee incentives for voluntary vaccinations.
  • Consider mandatory rapid testing – as those products come to market – as an alternative to mandatory vaccination.


This column is not intended as legal advice related to individual situations. If your business is confronted with a specific legal problem, take advantage of your free hour of legal consulting from Skoler Abbott.