Can employers demand employees get vaccinated against COVID-19?

The answer is yes, but there are exceptions.

Henry Schwan
MetroWest Daily News

Editor's note: This story has been amended to state that employers must keep separate copies of employees' COVID-19 Vaccination Record Cards from employees' personnel files. An earlier version incorrectly described the proper employee file. 

There is a big question on the minds of workers as more businesses open their offices while COVID-19 infections drop and vaccination numbers increase: Can managers require their employees to get vaccinated against COVID-19 in order to return to the office after more than a year of remote work?

And, is it legal for a boss to ask a worker for proof that he/she is vaccinated?

Those questions, and others, were posed to labor lawyer Robert Young, a partner at Bowditch and Dewey in Framingham:

Robert Young, partner, Bowditch and Dewey

Can employers require their workers to get vaccinated against COVID-19?

“They can,” Young said.

However, there are two exceptions — workers with a legitimate disability or those with a legitimate religious objection.

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Those exceptions are grounded in federal and state laws that call for reasonable accommodations to be made for those with a disability or sincerely held religious beliefs.

In the area of disability, workers are protected by the federal Americans with Disabilities Act of 1990. The state equivalent is Massachusetts General Laws 151B.

Title 7 of the Civil Rights Act of 1964 protects workers’ rights on religious grounds. Massachusetts General Laws 151B is its state equivalent.

Are you seeing many businesses requiring workers to get vaccinated?

Young represents employers in his law practice, and said, generally speaking, most “strongly encourage” their workers to get vaccinated.

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Businesses requiring vaccination typically have staff that meet directly with third parties, including clients or the general public.

“It’s more likely these employers require vaccination, because of the inherent risk in that type of position,” Young said.

Can an employee sue an employer if he/she contracts COVID-19 at work?

The burden of proof here falls on the employee to show the employer was negligent.

That’s a challenge, because an employee would be hard-pressed to prove the employer should have known who in the office had COVID-19.

Another legal protection for employers is that they have generally been good actors in the fight against COVID-19. They're well versed in safety precautions during the pandemic, including telling employees to stay home if they’re not feeling well or displaying symptoms of COVID-19.  

One option for the employee is to file a worker’s compensation claim for time lost due to COVID-19.

Can an employer sue an employee who infects others on the job?

“That’s a tough one,” Young said.

The burden on the employer that required vaccination or strongly recommend it is to pinpoint where the employee contracted the virus. And, the employer must prove the employee knew — or should have known — that he/she carried the virus.

Ultimately, employers have to ask themselves, "What is the end goal?" in such a situation.

If it’s lost productivity because a worker is out of commission for a period of time, then the boss can look for ways to eventually get that employee to make up for lost time.

There’s always the option to terminate an employee who contracted COVID-19 after returning to the office, because he/she was likely hired “at-will.” That means an employer can fire an employee at any time, for any reason (except an illegal one). Or, for no reason without incurring legal liability.

At-will also benefits employees, because they’re free to leave a job at any time and won’t face legal consequences.

Can employers require proof of vaccination from employees?

The short answer is yes, but there are limitations.

An employer can only ask an employee if he/she has been vaccinated. It must be limited to a yes or no response. Out of bounds is asking "Why not?" if a staff member didn’t get vaccinated.

“That can be an impermissible medical inquiry,” Young said.

Employers can ask for a copy of an employee’s COVID-19 Vaccination Record Card from the U.S. Centers for Disease Control and Prevention. But it must be kept confidential, and separated from an employee’s personnel file.

Any other words of wisdom?

Last March, when the state went into a full state of emergency, Young's message to employers was to be patient and think things through. 

The same principles apply now as the state plans to lift all remaining COVID-19 restrictions on May 29. 

"Everybody has had a rough go. It's important for employers to acknowledge that," Young said. 

That means understanding that employees are coming back to the office with varying degrees of emotional angst. Businesses must realize they just can't flip a switch and expect everything to function the way it did before the pandemic.

"It going to take time. Patience is a virtue in this situation," Young said.

Empathy on the part of business owners is another key ingredient.

"Operationally, don't take a hard line," Young said. "You can't force someone to come in."
