As delta variant surges, things to consider before implementing vaccine mandate

As the delta variant spreads and positive COVID-19 cases continue to pop up, employers are questioning their policies yet again. Understandably, many of you are concerned about keeping workers safe and maintaining production levels, which likely took a hit in 2020. The question naturally rises: Can private employers require employees to get the shots? The answer: likely yes, but with some caveats and additional considerations.

EEOC guidance, court rulings favor mandates

The Equal Employment Opportunity Commission (EEOC) announced on May 28, 2021, that “Equal Employment Opportunity (EEO) laws do not prevent an employer from requiring all employees physically entering the workplace to be vaccinated for COVID-19.” Vaccine mandates also have gained recent traction in the courts:

• The U.S. Supreme Court declined to review a lower court decision permitting Indiana University to implement a vaccine mandate. As a result, the university can push forward with the requirement for all students and faculty.
• Similarly, a Texas federal district court upheld the termination of an employee who refused to get the vaccine as required. The court noted the individual could “freely choose to accept or refuse a COVID-19 vaccine; however, if she refuses, she will simply need to work somewhere else.”

Legal implications

While the EEOC and the courts are in alignment on the issue, there are other legal implications to consider before mandating the vaccine for employees. For example, be prepared for the possibility of having to provide an accommodation.