Let Employers Mandate Vaccines

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It is generally legal in the United States for an employer to fire employees refusing to follow workplace rules, with a few exceptions. While we would never cheer anyone’s unemployment, this is the right state of affairs legally and ethically, and there is no good reason to treat Covid-19 vaccine requirements differently.

At least 10 states have proposed bills prohibiting private employers from mandating that their workers must be vaccinated against Covid-19 as a condition of their employment. Such bills are ill-conceived and unwise. If enacted they would unfairly interfere with the right of employers to safely run their businesses. They are also unnecessary since federal law already protects certain employees against unjust discrimination.

Covid-19 has not only killed hundreds of thousands of Americans and harmed tens of millions more, it has also had a dramatic and traumatic effect on American business. Many small businesses have closed. Others have lost huge sums of money or had to severely reduce their hours or the numbers of customers they serve. Many have had to let employees go, whether through the direct effect of the pandemic on overall workforce health, because people are afraid to take jobs in high-exposure locations, or because of important public health measures.

Covid-19 vaccines offer hope both in reducing death and for the ailing economy. The vaccines are safe and they work. Businesses from airlines, hotels, and restaurants to nursing homes and manufacturing plants see having a highly vaccinated workforce as a way to protect themselves from future outbreaks.

The law traditionally allows private companies to set work conditions that protect their employees and customers. Usually, if the state interferes, it is to add safety measures, not to prohibit employers from acting to increase safety. Singling out safe and effective Covid vaccinations as somehow intrusive in a workplace full of less impactful safety requirements makes no sense.

Most employers are unlikely to mandate Covid-19 vaccines right away. A recent survey found less than 1% of respondent companies had vaccine mandates in place. That jibes with informal polling we have seen of 10 Fortune 500 companies, which showed none ready to mandate. In fact, employers looking at increasing vaccination rates are currently examining different incentives to encourage workers to do so. Starbucks is offering two hours of paid time off for each shot. Others are paying workers to be inoculated, including Lidl with $200 in extra pay, and Kroger offering $100.

If a private company decides that a mandate is the best tool to protect its workforce and customers, then the state should not prohibit it. After all, a private employer can traditionally decide whom to hire for any reason, with few exceptions based on existing antidiscrimination laws. Nobody has a right to force a private company to hire safety rule-breakers. People cannot say, “I don’t like your rules, I won’t follow them. Forget your hard hat or your handwashing. You have to employ me anyway.”

Why make Covid-19 vaccination the exception and force employers to employ people who dislike their policies? Such people can choose to go work elsewhere. Vaccines aren’t identical to a hat requirement, but are well in line with previous workplace requirements. Many healthcare facilities already require a set of vaccines as a workplace condition, including for mumps, measles, rubella, hepatitis B, and annual influenza vaccines. Some restaurants have required workers to get the hepatitis A vaccine, especially after outbreaks. With a few local exceptions, states largely allow employers to require vaccines. Why treat Covid-19 vaccines differently?

There are also already federal protections in place for workers who cannot be medically vaccinated. The Americans With Disabilities Act requires employers to provide accommodations to workers with disabilities, unless it’s a very high burden. Under the Civil Rights Act of 1964, protections exist for those with religious objections to vaccines that grant them accommodations as long as they are not an undue burden on the employer.

Workers have a right to a safe workplace. Customers may also want a safe environment, and may prefer businesses that offer it. If the employer considers that a vaccine mandate is the best way to get to a safe workplace or if a private business desires to present itself as taking all measures to reduce Covid-19, including mandating vaccines, it should be able to choose that option.

Dorit Reiss is professor of law at the University of California, Hastings College of the Law.

Arthur Caplan is director of the Division of Medical Ethics at the New York University Grossman School of Medicine.

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