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Now that the public health emergency is over, can you still require your employees to get the vaccine? The answer is maybe. Consider these factors.
In May 2023, President Biden declared the end of the COVID-19 public health emergency, lifting the vaccine mandate for federal workers. With vaccination now less urgent, many are questioning the legality of workplace requirements. You may be surprised to learn that the end of the emergency does not directly affect your ability to mandate the shots. Here is what you should know about COVID-19 vaccination policies moving forward.
Federal vs. State Laws on COVID-19 Vaccine Requirements
No federal laws, including Equal Employment Opportunity regulations, stop you from mandating the COVID-19 vaccine at work. Furthermore, no federal law stops you from requiring your employees to provide proof—through a vaccine card, for example—that they are up to date with their COVID-19 shots.
Even though federal laws may not impose limits, remember that your state’s laws might differ. Some states, like Illinois, allow private employers to make their own decisions about vaccines. However, other states like Texas have banned employers from requiring the COVID-19 vaccine. If your state has not prohibited this authority or placed any other restrictions, you can still legally require your employees to receive the shots.
But keep in mind that this authority comes with strings attached. To avoid potential discrimination claims, you must apply the vaccine policy uniformly to all your employees without bias. You must also allow your employees to request religious or disability accommodations or exemptions under laws such as Title VII of the Civil Rights Act and the Americans with Disabilities Act. Be thorough and careful when deciding whether to approve these requests.
Understanding Religious Exemptions
Religion is a key factor to consider in vaccine mandates. In June 2023, the U.S. Supreme Court held in Groff v. DeJoy that employers cannot deny religious accommodations to their employees unless granting them would “result in substantial increased costs in relation to the conduct of [their] particular business.” In other words, employers need a strong business justification for refusing to provide religious accommodations to their employees.
The Groff decision will likely make it harder for employers to require COVID-19 vaccines for employees who decline to get one on the basis of their faith. The new “substantial increased costs” standard is much more challenging for employers to meet than the old “de minimis cost” standard, which allowed exemptions to be denied for trivial costs.
Balancing Legal Risks and Employee Pushback
Even if you are legally permitted to require the vaccine, remember what’s acceptable may not always be the best path. With the end of the public health emergency, the clinical rationale for a workplace COVID-19 vaccine is weaker, and some workers may oppose it. While this is less likely to cause major conflict in healthcare spaces, significant pushback against vaccine mandates in some areas—even during the public health emergency— suggests it may be wise to consider how such a policy might affect your business.
OSHA Considerations for Recommending the COVID-19 Vaccine
Many private practices recommend or encourage the COVID-19 vaccine rather than requiring it. If you choose this approach, remember your duty under the Occupational Safety and Health Act (OSHA) to maintain a safe, hazard-free workplace. Although COVID-19 is no longer a public health emergency, it remains a contagious virus that poses ongoing risks.
Navigating vaccine policies can be challenging. If you mandate the vaccine, you could face legal issues related to accommodating religious beliefs, as discussed above. On the other hand, not requiring or encouraging vaccination could expose your practice to safety risks under OSHA if an outbreak occurs. Balancing these competing risks is crucial for compliance and workplace safety.
Get Legal Help
Ultimately, setting your workplace COVID-19 policy is a balancing act. How will you maintain a safe work environment while complying with laws and respecting protected freedoms? Know the laws in your state to help guide your decision.
An experienced healthcare attorney can help you navigate these complexities and other employment matters, ensuring your COVID-19 policy aligns with legal requirements and protects your practice. If you’re located in a state where we have licensed attorneys, you can schedule a free consultation to learn how we can assist you.
This article is made for educational purposes and is not intended to be specific legal advice to any particular person. It does not create an attorney-client relationship between our firm and the reader. It should not be used as a substitute for competent legal advice from a licensed attorney in your jurisdiction.
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