Can US employers legally require staff to get a COVID-19 vaccine?

A hospital in Texas – Houston Methodist – has hit the headlines after it suspended 178 members of its staff.

This was because the hospital announced in April that it was making it mandatory for its employees to be fully vaccinated against COVID-19 by Monday 7 June or else they would face a 14-day suspension without pay, according to reporting by the Houston Chronicle. 27 of the 178 employees suspended have been only partly vaccinated, the rest have not received the first dose of a COVID-19 vaccine

Staff were also warned that if they failed to get a vaccine during that two-week period then they would face the sack.

The hospital says that it was prepared to make exemptions to the policy for religious and medical reasons. However, it argues that these 178 suspended employees failed to apply for the exemption.

There were 285 additional unvaccinated employees who received exemptions and 332 who were granted deferrals who were not suspended without pay.

In a statement cited by CNBC, Houston Methodist CEO Dr Marc Boom noted that he understood that being vaccinated could be a “very difficult decision” for some employees, but that they needed to do the right thing to protect “our patients, your colleagues, your families, and our community.”

He continued: “The science proves that the vaccines are not only safe, but necessary if we are going to turn the corner against COVID-19.

“The mRNA technology behind the Pfizer and Moderna vaccines isn’t new or experimental. It’s been around for many years.”

However, a cadre of Houston Methodist staff disagree. 117 of the hospital’s unvaccinated employees filed a lawsuit against Houston Methodist in late May that claims the vaccines are “experimental” and that the hospital can’t force any employee “to accept an FDA unapproved vaccine on penalty of termination or other sanctions.”

“None of the currently available experimental vaccines for COVID-19 has received final approval from the FDA,” the lawsuit says.

All three of the COVID-19 vaccines available in the US – Pfizer/BioNTech’s, Moderna’s, and Johnson & Johnson’s candidates – have all only received emergency approval to date. They are yet to be fully approved by the US Food and Drug Administration – this emergency approval process has also been used elsewhere in the world, including in the UK.

In other news, Goldman Sachs is requiring its US bankers to disclose their COVID-19 vaccination status before they return to the office next week, according to reporting by the Financial Times.

A memo sent out to employees said: “Registering your vaccination status allows us to plan for a safer return to the office for all of our people as we continue to abide by local public health measures.

“While we strongly encourage you to receive a Covid-19 vaccine, we understand that the choice to get vaccinated is a personal one.”

Are mandatory COVID-19 vaccine policies legal in the US?

The short answer is ‘yes.’ The US Equal Employment Opportunity Commission (EEOC) published guidance on 28 May that said federal laws “do not prevent an employer from requiring all employees physically entering the workplace to be vaccinated for COVID-19”. But only so long as employers comply with the “reasonable accommodation provisions” of the Americans with Disabilities Act.

However, the EEOC did warn that “employers should keep in mind that because some individuals or demographic groups may face greater barriers to receiving a COVID-19 vaccination than others, some employees may be more likely to be negatively impacted by a vaccination requirement.”

However, as a New York Times article notes, although federal law should overrule state law, this won’t stop some states weighing in on the debate.

For instance, Texas governor Greg Abbott has signed a law that prohibits businesses or government organizations from requiring a digital proof of vaccination. However, it remains unclear what impact this may have on the Houston Methodist case.

It is important to note that elsewhere in the world the legal situation regarding mandatory COVID-19 vaccination is less clear cut.

For instance, in the UK, there has been a lot of debate and disagreement around vaccine passports, for use in both workplaces and large-scale events.

However, it seems that there is no legislation in the UK that enables companies or organizations to require their employees to undergo medical treatment of any kind, including vaccination. However, under common law, it is possible that vaccination may be considered a reasonable managerial request – and this is something that has been floated around as an idea for UK care home staff.