Can employers mandate the COVID-19 vaccine to return to work? Depends on the company

As vaccines become more available, companies will have to decide.

February 18, 2021, 7:45 PM

Since the novel coronavirus first began spreading throughout the United States, health experts across the country have suggested that it would take a vaccine to stop the virus.

Americans have begun heeding that advice. Over 40 million Americans have received at least the first dose of one of the vaccines authorized for emergency use late last year, and as that number grows, the prospect of returning to physical workspaces becomes more real. Those who don't want to get vaccinated, experts say, may run into issues with their employer.

Charles Craver, a law professor at George Washington University, said that while there are some exceptions, most employers can mandate that their employees get the shots.

"Employees who work for private employers ... are employed at will in the United States, which means, 'I can terminate you for good cause, bad cause or no cause at any time. And so, if you don't cooperate with me and you don't have a religious issue, you don't have a disability-exact issue and you don't come under state law, I can terminate you if you're not willing to have the vaccine or to come to work where you're getting tested,'" Craver said.

As COVID-19 vaccines become more widely available, deciding whether or not to mandate the shot for employees will become all the more pertinent for employers.

Scott Kirby, the CEO of United Airlines, recently said that a mandate is "the right thing to do," but he said other "like-minded" companies would have to do it, too, for the initiative to work.

As some companies consider mandates, others are leaving it up to their employees -- but rewarding those who roll up their sleeves for the shots.

"Anybody who wants to not get vaccinated, it's their body. Ultimately, they're responsible for their own body," said restaurateur Jason Berry, founder of Knead Hospitality and Design in Washington, D.C.

Berry said his company is encouraging employees to get vaccinated through "a variety of incentives," including "four hours of pay as a bonus when they're fully vaccinated."

The extra incentive isn't without reason. About a third of people polled by the Kaiser Family Foundation in January said they were taking a "wait and see" approach to getting vaccinated. That percentage was even higher among minorities, with 43% of Black adults and 37% of Hispanics saying they'd wait. It also found that roughly a third of non-health care essential workers were waiting to take the vaccine.

Sue Wilmont is not one of those people. As an essential worker at a Safeway grocery store near Seattle, and even with all of the safety precautions the grocery chain has implemented, she believes the vaccine will make it safer for everyone.

"It would just make me feel safer," she said. "It would make me feel like I'm not going to bring it home to my family. It would make me feel like I'm not going to pass it to my neighbors, my customers. It would be a comfort to me to get vaccinated, and I'm just waiting for that."

Like Berry, Joe Fasula, the owner of Gerrity's Supermarkets in Pennsylvania, believes his employees can make the decision for themselves.

"We think our employees can make an informed choice and, quite frankly, most of them are very eager to anyway," he said.

It's that sort of choice that Mark Perrone, of the United Food and Commercial Workers Union, said he's prepared to fight for if his union members are required to get the shot by their bosses.

"If the employers come to us and say, 'Look, we're going to mandate or we're going to put somebody off the job,' we're going to represent our membership," Perrone said.

Still, Craver said employers have a "legal obligation" to maintain healthy work environments.

"That includes protecting individual employees themselves," he said, "and their coworkers and customers."