What’s in it for Employees, Employers, and Society in General?

The Food and Drug Administration has formally approved Pfizer's COVID-19 vaccine. The widely anticipated decision replaces the emergency use authorization granted by the agency last December. The vaccine, developed by Pfizer and its partner BioNTech, is the first COVID-19 vaccine to be subject to a full review by the U.S. regulator and to get an approval that puts the vaccine on par with other marketed vaccines. The full approval could make it easier for employers, the military and universities to mandate vaccination and may reassure some people who are hesitant about the vaccine.

As mandatory COVID-19 vaccines become more widespread, many employers are asking what they can do if workers refuse. Some employers are firing workers who won't take the vaccine and others are requiring unvaccinated employees to submit to weekly testing and take other safety precautions. 

According to a New York Times article, companies can require workers entering the workplace to be vaccinated against the coronavirus. Companies are legally permitted to make employees get vaccinated, according to recent guidance from the federal agency that enforces workplace discrimination laws, the U.S. Equal Employment Opportunity Commission (EEOC). Still, the EEOC guidelines recommend employers to keep in mind that some individuals or demographic groups may face more barriers to receiving a vaccine than others.

Employers Requiring Vaccination

In addition to private companies, government entities such as school boards and the Army can require vaccinations for entry, service and travel, a practice that follows a 1905 Supreme Court ruling in Jacobson v. Massachusetts that allowed states to require people to be vaccinated against smallpox. That decision paved the way for public schools to require proof of vaccinations from students.

Many companies are encouraging employees to get vaccinated rather than requiring them to do so. Target, for example, is providing up to four hours of paid leave for employees to get vaccinated and covering taxi rides to and from the appointments. The supermarket chain Kroger is offering $100 to all associates who provide proof of vaccination. Salesforce, the software giant, will allow up to 100 fully vaccinated employees to volunteer to work together on designated floors of certain U.S. offices.

Delta Air Lines said last month that it would require new hires to be vaccinated but exempt current ones, becoming one of the first major companies to do so. United Airlines also said that it would require new hires to provide proof of vaccination within a week of starting but would make exceptions for people who had medical or religious reasons for not getting vaccinated. It is giving three days of extra vacation to flight attendants who have received at least their first vaccine dose by June 9.

Federal laws do not prevent companies from requiring employees to provide documentation or other confirmation of vaccination, though they must keep that information confidential. Employers can also distribute information to employees and their family members on the benefits of vaccination, as well as offer incentives to encourage employees to get vaccinated, as long as the incentives are not coercive.

If an employee will not get vaccinated because of a disability or a sincerely held religious belief, the EEOC said, he or she may be entitled to an accommodation that does not pose an “undue hardship” on the business. The agency said examples of reasonable accommodation could include asking the unvaccinated worker to wear a face mask, work at a social distance from others, get periodic coronavirus tests or be given the opportunity to work remotely.

What’s in it For Employees?

Employees may ask whether it would be appropriate to let an employer know that they have been vaccinated. This can help to strengthen your workplace position and when you look for a job. The coronavirus virus is likely to be with us for a while, at least in the form of variants. Some employers may look more positively on employees who have been vaccinated as it adds to the safety of all workers.

Art Caplan, a professor of bioethics and head of the division of medical ethics at New York University School of Medicine, thinks the vaccine will become “a ticket to hiring.” “Some businesses are going to be able to make a convincing ethical case that you better be vaccinated to protect your co-workers and protect your customers,” he explained. “I think it will become pretty routine.”

Sharing vaccination status with an employer is also legal. Some candidates may even think it makes sense to offer that information when applying for certain jobs, particularly ones that involve significant travel, sales or interacting with the public, said Dan Kadish, a senior associate at Morgan Lewis in New York.

What’s in it For Employers?

Can a potential employer choose to hire someone — or not hire them — based on their vaccination status? Attorneys say that when it is necessary for the job, yes, it would be legal for employers to make hiring decisions based on whether applicants have been vaccinated against the virus. However, health-care labor and employment attorney Kevin Troutman noted that employers who are screening applicants based even partly on their vaccination records should be holding current employees in similar positions to those same standards. “They’ve got to be able to establish and prove why it’s a job-related requirement,” Troutman said.

Still, even though it may be legal to hire, or not hire, certain applicants, possible ethical questions could come into play, assuming potential employers use solely that vaccination information when doing their hiring, said Amber Clayton, director of the Knowledge Center at the Society for Human Research Management in Alexandria, Va. For instance, she said, a potential employer may not be aware that a qualified but unvaccinated applicant could not take the vaccine because of a disability or religious reason.

Because federal nondiscrimination laws do not typically apply to individuals, they would have even fewer restrictions on asking potential employees about their vaccination status and making hiring decisions based on it. No question that it would be smart to check state laws, especially as vaccines — and the state legislation surrounding them — evolve.

When an employee has not been vaccinated, however, the employer must be careful not to probe as to why, particularly in situations in which vaccinations are voluntary and not required for the job. “What we are cautioning employers not to do is to ask for additional information,” said Kadish. He explained that further questioning could inadvertently lead to a medical inquiry protected under the Americans with Disabilities Act (ADA). “Those types of medical inquiries are only permitted where they are necessary for the job,” he said.

Is Vaccination a Legitimate Job Requirement?

Employers can legally require employees to get vaccinated, assuming they can establish it is a legitimate job requirement and assuming they make reasonable accommodations for workers who cannot take the vaccine because of disabilities or religious reasons.

“The thought process is the vaccine stops people from having severe illness or developing severe complications from covid-19, and so it could help the individual from becoming a direct threat to themselves or others in the workplace,” Kadish said.

But Kadish added that rather than mandating vaccinations, some employers have started offering incentives such as gift cards and additional paid leave to encourage their workers to get the shots.

This troubles me as an ethics expert because it smacks as having to bribe employees to get them to do what they should do as contributing members to a safe workplace and for the public good.

Are these Vaccine Questions Ethical?

It depends on who you ask. Libertarians might say employers have no right to become involved in one’s personal decisions. Caplan said that although employees are under no moral obligation to answer the vaccine question, “I think employers can and will be asking. It’s going to become more routine, particularly with vaccines starting to get more widely distributed. They’re going to ask, ‘Have you had covid?’ ‘Have you been vaccinated?’ ” He said that some businesses in particular will want to be able to say their workers are vaccinated.

Having more employees vaccinated is good for society. It contributes to herd immunity. It protects society in general. It is the right thing to, if not for oneself than for one’s loved ones and those in the workplace.

Posted by Dr. Steven Mintz, The Ethics Sage, on August 24, 2021. Steve is the author of Beyond Happiness and Meaning: Transforming Your Life Through Ethical Behavior. You can sign up for his newsletter and learn more about his activities at: https://www.stevenmintzethics.com/. Follow him on Facebook at: https://www.facebook.com/StevenMintzEthics and on Twitter at: https://twitter.com/ethicssage.