Millions of people who have been working remotely will soon be asked to return to workplaces where they will face new safety concerns due to Covid-19. To address those concerns, can their employers require them to get vaccinated? The answer is yes, and for some very good immediate public health reasons.
So far, few employers have announced firm plans for a Covid-19 vaccination mandate — yet many are considering it.
Yet, employer vaccination mandates also set a worrying precedent for worker medical privacy. One day the pandemic will be over. Going forward, we must be careful to protect privacy and maintain equitable treatment at work even as we add these necessary new practices intended to protect the workplace and employee health and well-being.
In general, American employers have latitude to impose many different requirements on their employees, including changing their jobs, assigning undesirable tasks and dismissing workers for any reason as long as they don’t run afoul of certain federal and state protections, especially those rooted in anti-discrimination laws. So, while it might seem that the company you work for has no right to force you to undergo an invasive medical procedure, the law allows U.S. employers to mandate that their workers get vaccinated as part of these prerogatives.
The ability to require vaccinations as a condition of employment was specifically clarified in December in guidance issued by the Equal Employment Opportunity Commission. Under the Americans with Disabilities Act, the EEOC noted, employers can enforce “safety-based qualification standards” for workers, including those aimed at ensuring people do not pose a “direct threat” to the health and safety of others in the workplace. Such standards can include a vaccination requirement.
And under the rules of the Occupational Safety and Health Administration, part of the Department of Labor, there is a general requirement to maintain “a workplace free from serious recognized hazards.” Of course, while this obligation fortifies companies’ rights to demand that staff get vaccinated, many employers and industries will also have to maintain mask-wearing and social distancing protocols even with workforce vaccination to adhere to this standard.
However, to not fall afoul of other ADA requirements, an employer’s vaccination policy needs to include a careful process for addressing workers whose medical conditions prevent them from safely taking the shot. These workers need to be provided with reasonable job accommodations, possibly involving remote work, masks and social distancing, or another position. Given the newness of the vaccines, there’s also not complete clarity on which medical conditions pose a risk and therefore constitute a legitimate reason for being exempted from an employer vaccination program, meaning gray areas and complications for employers and employees alike.
Employer vaccination policies also need a process for exempting and accommodating workers with sincerely held religious objections to vaccines, in order to comply with Title VII of the Civil Rights Act. Here, too, there’s a lot of uncertainty around what constitutes a legitimate and applicable religious belief for this purpose, but the legal protection likely wouldn’t extend to an anti-vaxxer or other vaccine critic whose opposition is rooted in something other than faith. Employers can request supporting information if they are skeptical about a religious accommodation request.
The notion of mandatory worker vaccinations has some precedent; many hospitals and nursing homes, as well as the U.S. military, have required flu vaccinations for years. States have also long had immunizations requirements for students attending school, and the Los Angeles Unified School District has said it will require Covid-19 vaccinations in its schools. While the ADA prohibits employers from requiring medical exams except when job-related, a vaccination is not a medical exam, so that restriction doesn’t apply.
So far, few employers have announced firm plans for a Covid-19 vaccination mandate — yet many are considering it, including United Airlines, whose CEO Scott Kirby recently voiced support for the measure. Indeed, some businesses may soon view the maintenance of a coronavirus-free workplace as a meaningful part of their corporate social responsibility: their ethical responsibility to employees, customers, communities and other stakeholders.
Employers also have an incentive to maintain their employees’ health through vaccinations, as it contributes directly to workforce productivity, retention and morale. And let us not forget that in America, employers foot most of the bill for medical care, so they have an added financial incentive to maintain the health of their workforce. While employers are not obliged to pay for vaccinations, even if they mandate them, it is in their interest to cover the cost, and many employers have already announced they will do so.
Given that millions of Americans surveyed say they won’t get the shots and society may struggle to reach so-called herd immunity through vaccinations, businesses may therefore wish to continue their own safety measures for years to come. But whether employers start requiring proof of vaccination or institute financial rewards for workers to get vaccinated (as Aldi, Dollar General, Houston Methodist and others are now doing), there are real concerns about maintaining medical privacy.
By law, every employee’s health data — including information about their medical conditions and prescriptions — is confidential and must be kept separate from employment records. It should therefore not be used for employment-related decisions unless, for example, it is part of an ADA-covered disability process (i.e. an impairment preventing participation in major life activities).
Yet with vaccination mandates and incentives, those protections may conflict with safety goals. For example, to achieve a safer workplace, vaccination status could be used to determine who can work in jobs with more virus-spreading risk (like those with more co-worker and customer contact). If a significant number of people in a workplace seek exemption, as seems possible based on polling, reassigning large numbers of employees away from their original jobs effectively means health data is being used in making employment decisions. It could also stir resentment about the exemptions and modifications.
Considering these complications, forward-looking employers are already applying marketing principles in order to promote voluntary vaccination and minimize the likelihood of large numbers of employees seeking exemptions. For instance, they are disseminating tailored education materials, highlighting senior executives’ enthusiasm about receiving the vaccination themselves, and ensuring messaging is both scientifically accurate and effective for diverse groups within the workforce.
These privacy and discrimination concerns may be even greater for people of color. Vaccination reluctance is higher among Black and Hispanic Americans, due in part to a history of being used as medical test subjects without proper safeguards and consent. Hence, if access to certain jobs is shaped by vaccination status, this could disproportionately affect minority employees.
Another privacy and discrimination concern looms large on the horizon. We are moving into an era of precision medicine, where individuals’ genetics can be used to predict their disease risks and tailor their medical treatments. Reflecting this new era, researchers have found genetic factors, including genes inherited from Neanderthal ancestors, that predict a person’s susceptibility to Covid-19.
If access to certain jobs is shaped by vaccination status, this could disproportionately affect minority employees.
The use of genetic information in employment-related decisions is currently limited by the Genetic Information Nondiscrimination Act, but there are efforts underway to change these laws to expand how genetic data can be collected and used in the workplace. Perhaps not surprisingly, in a national survey completed just prior to the pandemic, my colleagues and I found many Americans were hesitant about sharing genetic data, and 57 percent were against changing GINA to expand the collection and use of employee genetic data.
Vaccines, treatments and preventative testing can and should be used to advance our urgent public health goals, but they also raise new concerns. There are no clear answers, but now is the time for employers, policymakers and society to think through the relationship between health and the workplace, the public good and personal privacy.