After more than a year since the Covid-19 pandemic struck, many of us are finding that as we return to work, things are slightly off from what they once were. Several employers are requiring facemasks, social distancing, and heightened sanitation, to name just a few. And all for good cause as well. Employers want their employees returning to work, but presumably want to prevent the spread of the virus as well. In light of this, several employers are now requiring that their employees receive the vaccination. Employers are approaching vaccination requirements by several means, the most common being the consequential approach (i.e., unvaccinated employees will suffer unpaid leave, suspension, termination, etc.) and the incentivization approach (i.e., vaccinated employees do not need to wear masks or social distance). These new requirements all raise an important question: can your employer require you to get a vaccine? The short answer: Yes, they certainly may.
At first glance, this issue can be quite unsettling. How can it be just for employers to dictate your medical decisions? However, employers have a significant amount of discretion in setting up the workplace environment. This is largely due to the fact that Texas is an at-will state. In other words, under Texas law, your employer has plenty of leeway in making workplace policy. For example, should your employer decide that, starting next week, everyone in the office is required to wear pink dress-shirts with electric blue ties, then you better show up on Monday wearing a pink dress shirt and an electric blue tie. Otherwise, your employer will have grounds to terminate you. As absurd as this sounds, this pink-shirt policy is completely valid under Texas law. Similarly, employers have discretion to require that employees receive vaccinations, particularly the Covid-19 vaccine.
We should, however, dispel a popular rumor underlying vaccination requirements. This rumor being that employers cannot require the vaccine because it is not “FDA approved.” Legally, this simply does not matter. The FDA authorized the use of these vaccines, therefore employers are allowed to require it. The fact that the vaccine has not been FDA approved is irrelevant (to those skeptical of this claim, it should be noted that Pfizer did apply for full FDA approval roughly a month ago).
Furthermore, the Equal Employment Opportunity Commission (“EEOC”) released guidance this previous week asserting that companies can require employees to be vaccinated. The EEOC further posited that companies may offer incentives to workers as long as they are not coercive. The EEOC, however, did not elaborate on what would constitute a “coercive” incentive. The only caveat to the EEOC’s guidance is that the employer may require the vaccination so long as they are in accordance with the reasonable accommodations provision of the Americans with Disabilities Act. In other words, your employer cannot make you receive a vaccination if it would in some way be detrimental to your health. For example, suppose you suffer from a serious auto-immune disease and your doctor recommends, for the sake of your health, that you do not get the vaccine. In this instance, you should notify your employer of your ailment, provide them with the necessary paperwork, and request that they accommodate your disability so that you do not need to obtain the vaccine and jeopardize your health. Again, the burden is on you to show your employer that the vaccine is detrimental to your health.
This news should not come as a surprise as this would not be the first time vaccinations are mandated. In fact, several establishments typically require vaccinations. For example, public and private universities in Texas typically require students to show records that they have received their meningitis shots prior to registering for classes. As counter-intuitive as it may seem to some, refusing a vaccination, outside of valid medical grounds, is not protected activity. In other words, you will not be protected by the law should you refuse.
For those concerned about the possibility that their employer may require them to get the vaccine, there is not too much cause to worry. It has been found that a significant majority of companies in the United States are not even considering requiring the vaccine. Chances are, you most likely will not be required by your employer to receive the vaccine. For health purposes, however, you may want to consider the option nonetheless. We are living in the new normal, and these circumstances demand that we contain the spread of the virus. So what happens when your employer requires you to receive the vaccine? You either bite the bullet and get it or risk a fight that is all but lost.