Employers might be able to mandate Covid-19 vaccinations

CHARLOTTE, N.C. — To vaccinate or not to vaccinate?

That is the question Emily Litzinger, partner with Fisher Phillips, has been fielding a lot from clients since the U.S. Food and Drug Administration issued Emergency Use Authorizations on Covid-19 vaccines from Pfizer-BioNTech and Moderna in December.

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More specifically, Litzinger said, whether or not employers can mandate their employees get vaccinated against Covid-19 has become the million-dollar employment law question, for which the answer is not so clearly cut.

The Equal Employment Opportunity Commission indicated employers can mandate vaccinations for employees in specific circumstances without violating anti-discrimination laws like the Americans with Disabilities Act or Title VII, she said, but those specific circumstances are subjective.

While health-care providers and education institutions are likely to implement Covid-19 vaccine mandates due to the public-facing and front-line nature of their work, a mandate for industries that have largely gone into remote work — like professional services providers — just would not work the same, she said.

“If you’re dealing with someone like me, who can work entirely remotely, an employer is not going to be able to mandate they get vaccinated,” Litzinger said in an interview. “Also, with that mandate, comes exceptions.”

She said in talking to clients about whether they should mandate vaccinations, she encouraged them to tread lightly. That decision depends on the industry and if vaccinating would reduce risk of an employee, patient or customer contracting the virus.

Read more here about what Litzinger and other experts say on the topic.