Now that COVID-19 vaccines are widely available, some companies have already made it mandatory to get those shots to stay employed. Chapman University, Loyola Marymount University and Cal State University will require students, faculty and staff coming to campus in the fall to be fully vaccinated, assuming the FDA switches from emergency to full approval for at least one of the vaccines.
But it’s not just the education sector. Silverado, a long-term care facility chain with the majority of its locations in Southern California, started requiring COVID vaccines for employees starting March 1.
“This vaccine was a gift to us. It’s up to us to have the courage to use it,” says Silverado founder Loren Shook. “Many of us felt it was the right thing to do.”
Shook says before requiring the vaccine, as few as 50% of staff at some of their facilities voluntarily got vaccinated. He was most worried about driving staff away in an industry where they’re already difficult to come by.
“Everybody’s having difficulty getting licensed personnel. We’re having difficulty too. You ask the staff initially, ‘Are you willing to get vaccinated?’ ... High numbers [say], ‘No I’m not,’” he says. “There’s a fear factor of operating. Will I have the staff to operate? If you’ve got a coronavirus outbreak, it’s difficult.”
Now their employee vaccination rate is 97%. Fewer than 1% of their staff quit the company. The other 2% either secured an exemption or are trying to get one.
There have not been any major court cases to determine whether it’s legal to compel employees to get a COVID vaccine, but there is precedent that puts employers in a good position. The Supreme Court ruled in 1905 that states could require smallpox vaccines.
“In the workplace, if there is some sort of virus or pandemic or some other thing that creates a direct threat to the health and safety of others in the workplace, the employers can try to manage that. If a vaccine is available that can mitigate that risk, employers are allowed to mandate that,” says Ramit Mizrahi, an employment lawyer who founded Mizrahi Law in Pasadena.
Mizrahi says a vaccine requirement must come with a couple exemptions:
- Disability: There is a very small percentage of people who could have a severe allergic reaction to an ingredient in the vaccine, or who might have a condition that prevents them from getting a shot. Those people must be granted an exemption.
- Religious exemption: Some people say their sincerely held belief doesn’t allow them to participate. So far, no major religions oppose this vaccine, which is good news for employers.
“If the employer has an objective basis to question the sincerity of that particular belief, they can ask the person to identify what they’re relying on, the basis for their religious objection, and how their religious belief is negatively affected by the vaccine,” says Mizrahi. “If an employer deems there to be more than a de minimis cost to their operations, they don’t necessarily have to provide that religious accommodation.”
California has an even higher standard of proof than the federal standard, which means more protection for employees.
If the employee qualifies for an exemption, the employer must provide reasonable accommodation. If an employer can accommodate remote work, or safely protect an unvaccinated person, they have to provide that. Some employees, like the licensed nurses at Silverado, cannot be reasonably accommodated.