But legal experts say that employers can mandate getting the shot. Whether they should is a different matter.
Some jobs already have vaccination requirements. For instance, some health care workers are required to get flu shots.
“This idea that vaccines can be mandated is well-established,” said Jay Rosenlieb, partner and chair of the Labor and Employment Group at Klein DeNatale Goldner law firm in California.
Once a Covid vaccine becomes available, experts think some employers are likely to require workers to get it.
“I fully expect there will be employers that choose to make it mandatory,” said David Barron, an employment attorney at Cozen O’Connor.
Under these circumstances, employers would have to provide reasonable accommodation. That could mean allowing the employee to work from home, or to use personal protective equipment in the office along with other health and safety measures, according to Rosenlieb.
Not wanting to get the vaccine for moral or political reasons would not be protected.
But making vaccination mandatory could open an employer up to potential workers’ compensation claims if an employee suffers any negative side effects. And that could cause some companies to stop short of making it a condition of employment.
“If an employee has an adverse reaction to a mandated vaccination, that could become a workers‘ comp claim at least,” said Rosenlieb.
Forcing employees to get the vaccine could also create a PR headache for the company.
“Employees love to discuss political issues, and a vaccine mandate is going to spur on that discussion,” noted Rosenlieb. That talk could leak outside company walls and onto social media.
“The employer then becomes exposed to social media conversations that they otherwise would not want to be exposed to.”
Instead of a mandate, employers could try to encourage and motivate employees to get vaccinated.
“I don’t think anybody wants to mandate it. They just don’t want the bad vibes that come from a mandated program,” said Rosenlieb.
He suggested employers take a multi-pronged approach: allow workers to get the vaccine on company time, have senior leadership promote that they got the vaccine, and engage the union to promote the shot.
He also said that workers who do not get the vaccine should not be discriminated against.