Should Your Business Require Employees to Be Vaccinated?

The coronavirus pandemic finally appears to be easing, and we’re seeing businesses reopen and teams working together again. The reason for that is the COVID-19 vaccines, which are even more effective than we’d hoped and are poised to power a small business recovery. 

But suddenly, businesses face a quandary that would have been considered a ”good problem” in the early months of the pandemic. Now that a vaccine shot is readily available to just about everyone who wants it, should your small business require employees to be vaccinated?

A fully vaccinated workplace is certainly a safer workplace, and customers would probably prefer that you and your staff are fully vaccinated. The CDC has said that people can stop wearing masks, even indoors—but only if they’re fully vaccinated. Your small business workplace can only return to the “old normal” once your customers and employees are fully vaccinated. 

Some companies initially said they would require COVID-19 vaccinations. But the New York Times reports they’ve backed off that requirement. And overall, very few large companies have enacted strict requirements. 

Costco and Walmart recently announced that fully vaccinated employees and customers could go mask-free in stores, according to CNBC. But it’s essentially just an honor system for customers, who do not need to show proof of vaccinations. The Times also reports that Delta Air Lines is requiring new employees to be vaccinated, but that policy only applies to new hires, not to existing employees. 

Very few, if any, large national companies have instituted a hard and strict vaccination requirement. But those are big corporations with thousands of employees and more complex legal considerations. For a small business with only a few employees, these decisions on how to keep your business and customers safe may be much easier.

Is It Legal to Require Employees to Be Vaccinated?

A business is legally allowed to require employees to have certain vaccinations. The US Equal Employment Opportunity Commission (EEOC) issued updated guidance in December clarifying that equal employment opportunity laws “do not interfere with or prevent employers from following CDC or other federal, state, and local public health authorities’ guidance and suggestions.” And it is, of course, CDC and health authorities’ guidance that everyone gets the vaccine.

Many states have required healthcare workers, teachers, and other types of employees to show proof of flu, measles, and diphtheria shots for years. 

But as the EEOC points out, there are some exceptions to vaccination laws. The Americans with Disabilities Act (ADA) limits how much medical information employers can ask of their employees and applicants. Title VII of the Civil Rights Act of 1964 allows exemptions for anyone with a “sincerely held religious belief” against vaccines.

But vaccine requirement laws differ by state. And nearly all 50 US states have legislation pending that could change their individual states’ mandatory vaccine rules.

Does My State Allow Mandatory Vaccinations?

All 50 states and the District of Columbia allow employees to opt out of vaccine requirements for various religious or medical privacy purposes. But just about all of those states are advancing bills in their state legislatures to weaken employer vaccine requirements so that far larger percentages of their populations can refuse the shot.

The online legal repository firm JD Supra has a breakdown of employer-mandated vaccine legislation by state. They found that almost all 50 states have bills submitted in their legislatures that would weaken or eliminate mandates requiring vaccination or have already passed these measures. 

It’s easier to explain which states aren’t trying to eliminate vaccine requirements than it is to list those that are. The only states not currently proposing the elimination of vaccine requirements are Mississippi, North Dakota, and Wyoming. Meanwhile, Oregon and Utah have already passed laws that, to some degree, eliminate vaccine requirements.

Every other state in the nation has proposals moving through their state legislatures to roll back vaccine requirements. Most have wording to the effect that they would “prohibit an employer from taking adverse action against an employee or potential employee based on the employee’s immunization status.” A handful of states’ proposed vaccine requirement rollbacks only apply to schools and daycare centers, others only apply to “healthcare workers or healthcare facilities,” and others broaden the religious exemption to also include “reasons of conscience.”

But 32 states have proposed laws that specifically target employer vaccination requirements. In some cases, these bills apply only to the COVID-19 vaccine and not any other types of vaccinations. Here are the states with pending employer-mandated vaccine legislation with links to the new laws your state may be proposing:

• Alabama 
• Alaska 
• Arizona 
• Arkansas 
• Colorado
• Connecticut
• Georgia
• Illinois 
• Indiana
• Iowa
• Kansas
• Louisiana
• Maryland
• Michigan
• Minnesota
• Missouri
• Montana
• Nebraska
• New Jersey
• New Mexico
• New York
• North Carolina
• Oklahoma
• Pennsylvania
• Rhode Island
• South Carolina
• South Dakota
• Tennessee
• Texas
• Virginia
• Washington
• Wisconsin

It’s important to remember that these state bills are all just proposed laws. None of the above have been passed yet or signed into law. But the sheer number of these bills nationwide indicates the legal momentum may be trending against allowing employers to require that their staff get vaccines.

The CDC guidance is the advice that most of your employees will understand and be familiar with because the CDC guidance makes the evening news and front pages of newspapers. But as we’ve learned many times throughout this pandemic, the CDC guidance can change again and again.

Right now, the CDC guidance website says “Get Vaccinated!” in very large letters on its home page. Many small businesses would like their employees and customers to follow that advice. 

But if you really want employees and customers fully vaccinated and willing to show you their vaccine card, you may need to offer special perks like bonuses, paid time off, or redeemable coupons—because you might not be able to count on laws allowing your small business to require employees to get a COVID-19 vaccination.