As the Covid-19 vaccine rollout continues across the nation we are seeing more employers telling their staff to return to the office in some capacity. As the anti-vax movement has shown us, the government can’t force you to get the vaccine – but can your employer?

Private Industry v. Federal Government

There are many things that the federal government cannot do simply because it is the government. There may be additional hurdles or requirements, or the action might be outright forbidden. One of the most common examples of this distinction is censorship.

Webster’s Dictionary defines the verb form of censor as “[examining] in order to suppress or delete anything considered objectionable. If we go off of the common definition of the verb then anyone can censor, including private companies. Except, legally speaking, run of the mill censorship doesn’t really matter. Censorship becomes relevant when it’s done by the government.

Things are less black and white when it comes to vaccinations. Public schools, which are run by the state, already require students to be vaccinated in order to attend. In New York, Governor Cuomo has already said that the Covid vaccine will be required for students. Although as we are all well aware, there are ways to get around this requirement by claiming religious exemptions. By the same rationale, even if there was a federal mandate requiring the Covid-19 vaccine the same anti-vaxxers claiming religious exemption would likely do the same.

Some private schools have already said the opposite – your job as a teacher may be at risk if you get the Covid vaccine. Both of these announcements are too recent to have been challenged in court, but there is strong precedent that would allow both actions to stand. As stated, schools already require vaccinations anyway; private employers can prohibit certain activity, although because health is implicated it’s likely this will be challenged in court. You don’t have a right to work for a particular employer, so there may be employees who find themselves valuing their health more than their job and getting the vaccine, even if it means they will be fired. With most states, and most jobs, being at-will, employees can be let go for practically any non-discriminatory reason.

So if your employer can tell you not to get the vaccine, are they able to do the opposite? As with most legal questions: it depends.

EEOC Guidance

The Equal Employment Opportunity Commission (EEOC) has issued key guidance relating to Covid testing and vaccination requirements for employers. They have stated that employers are permitted to take measures to keep the workplace safe, including mandating that an employee get the Covid vaccine.

Much like schools, employees are able to claim religious exemptions or sincerely held beliefs that would allow them to avoid getting the Covid vaccine. This situation is different though in that if you claim an exemption your employer can fire you. As these exemptions are covered by the ADA your employer must first try to make a reasonable accommodation and there may be other local laws that still protect the employee from termination.

It’s important to remember that reasonable accommodations can vary greatly depending on the person and the disability (or claimed religious or philosophical exemption). For some professions, a reasonable accommodation may simply be working from home, but there may be professions such as nursing or hospitality for which a reasonable accommodation may not be possible. In the event that no accommodation can be made, the employer is within their rights to terminate the employee.

My Employer Can’t Ask Me About My Health…Can They?

The EEOC guidance illustrates that employers are allowed to take steps to keep the workplace safe, including mandating vaccination for employees. Your employer (usually) isn’t the one administering your vaccination, so they rely on self-reporting and, now, your vaccination record card. Typically, you are not required to share your medical records with your employer, and the vaccination card even states, “Please keep this record card, which includes medical information….”

It would seem then that your employer shouldn’t even be allowed to ask about your vaccination status. Thankfully for public health, that isn’t the reality of the situation. Instead, the ADA guidance on vaccinations says that it is allowable for an employer to ask about vaccination status because it does not elicit the type of medical information that led to being or not being vaccinated. As long as the employer limits the questioning to vaccination status it is not considered a medical examination and does not implicate additional HIPAA requirements.

Travel May Decide

For many who currently refuse to get the vaccine without a legitimate reason their travel plans may actually dictate if they get their vaccination. While it is unlikely that vaccinations will be required for domestic flights, foreign governments may require Covid-19 vaccinations in order to avoid a resurgence. There is already precedent set by multiple African nations which require proof of vaccination before travelers are permitted into the country.

Even for those who don’t travel internationally, certain vacation destinations may require proof of vaccination. It isn’t outside the realm of possibility that theme parks, resorts, cruises, and more may require proof that their guests have proof of vaccination. Anti-vaxxer isn’t a protected class, which means businesses are free to choose not to do business with them. Unlike with an employer, these establishments are not required to make reasonable accommodations for a person’s choice to refuse the vaccine. We may see a future where people are turned away at the gates of a theme park because they refused to get their vaccination. No establishment wants to be ground zero of another pandemic, so it’s likely private businesses will take steps to protect themselves and minimize their own risk.

Ultimately, your employer is allowed to mandate that you receive the vaccination, and they are also allowed to terminate your employment if you refuse without a valid reason, or if your job cannot be done with a reasonable accommodation.