Editor’s Note: Dorit Reiss is the James Edgar Hervey Professor of Law at the University of California, Hastings College of the Law. The opinions expressed in this commentary are solely those of the author. View more opinion at CNN.
We’ve heard it many times over the past few months: vaccines won’t end the pandemic, vaccinations will. One way to increase vaccinations is for employers to require them in the workplace. But employers should not rush to do this. Although vaccine mandates are likely legal, other tools are probably better.
Of course, employers have every right to try to increase vaccines rates in their businesses. They have a duty to provide workers – and customers – a safe environment. Employers have broad leeway to set health and safety conditions in the workplace. In ordinary times, they can require vaccination as a condition of employment – with some exceptions.
The Americans with Disabilities Act requires employers to make accommodations for unvaccinated workers who have medical conditions that make getting vaccinated highly risky, unless doing so is a significant burden.
Similarly, under the Civil Rights Act of 1964, employers must offer accommodations to workers with sincere religious objections to vaccination – although employers may be exempt if the burden on them is more than minimal .
Covid-19 adds a legal wrinkle to these longstanding laws. Covid vaccines are being given through emergency use authorization. None of them have been approved, yet, through the regular licensing process. This creates legal uncertainty around vaccine mandates, which anti-vaccine employees are likely to exploit in court.
In fact, at least two lawsuits against vaccination mandates are already underway, one by a corrections officer in New Mexico and the other by educators from Los Angeles County.
Courts should reject these claims. While the emergency use authorization statute is not well written, there is nothing in it directed at employers, and courts should not read into it such a sweeping change in existing law. The US Centers for Disease Control and Prevention has recently pointed out that mandates are an issue of state law, not federal law.
Wherever the battle over vaccinations is fought, the evidence of their value is clear. With tens of millions of doses given, Covid vaccines have been shown to be safe and effective. If an employer concludes that mandating a vaccine is the best way to make their business safe, they should, legally, have that option – while providing only limited exemptions. Think of a corrections officer, working with a literally captive population, refusing to get a vaccine. The thought is jarring and that should not happen.
That said, a mandate is a very heavy-handed tool. It does nothing to resolve people’s concerns or hesitation about the vaccine. With any new drugs – especially those developed as fast as Covid vaccines – initial nervousness is understandable. It is also often temporary.
Polls in the United States suggest that as time goes by, and millions are vaccinated, hesitancy toward Covid-19 vaccines is decreasing.
Employers do have other tools. Education and incentives might be better responses to hesitancy than a mandate. Working to increase access – for example, by collaborating with health authorities to make the vaccine accessible for the workforce – is likely a more important first step than a mandate. Some workplaces have offered incentives, either in the form of direct cash payments or through paid leave for workers who vaccinate.
Employers can also use “soft” mandates – vaccinate or be required to wear extra personal protective equipment, for example – as an alternative. Reaching for coercion can negatively impact morale, and lead to pushback – people may resist being told what to do.
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There are, however, exceptions. In some situation, high rates of vaccines among workers are imperative. In high-risk, closed institutions like nursing homes or prisons, high rates of vaccines are crucial. If other tools do not achieve that, mandates are likely appropriate. Similarly, small business owners at personal high risk would be completely justified if they required vaccines.
But most workplaces can likely achieve high enough rates with lesser tools – and should probably choose that option.