

The U.S. Department of Veterans Affairs. The state of California. New York City. Hospitals and nursing homes. Colleges and universities. Employers are putting COVID-19 vaccine mandates into place and it's getting attention.

On Tuesday, President Joe Biden said a requirement is under consideration for all federal employees. But what happens if workers refuse?

Federal legal guidance out this week suggests the law is on the side of employers. Vaccination can be considered a "condition of employment," akin to a job qualification.


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"Those who have a disability or a sincerely held religious belief may be entitled to a reasonable accommodation under civil rights laws, so long as providing that accommodation does not constitute an undue hardship for the employer," said Sharon Perley Masling, an employment lawyer who leads the COVID-19 task force at Morgan Lewis.

Employees who don't meet such criteria "may need to go on leave or seek different opportunities," she added.



Department lawyers wrote that the law in question requires individuals be informed of their "option to accept or refuse administration" of an emergency use vaccine or drug. But that requirement does not prohibit employers from mandating vaccination as "a condition of employment."


The Justice Department opinion followed earlier guidance from the federal Equal Employment Opportunity Commission that federal laws prohibiting discrimination in the workplace "do not prevent an employer from requiring all employees physically entering the workplace to be vaccinated for COVID-19."





Raising expectations, Biden said Tuesday that a vaccine requirement for all federal workers is "under consideration right now." He promised to lay out next steps for his administration's stalled vaccination campaign later this week.

"The more we learn about this virus and the delta variation, the more we have to be worried and concerned," the president said, adding that if another 100 million Americans were vaccinated "we'd be in a very different world."

The push for vaccines has been piecemeal in the corporate world. Delta and United airlines are requiring new employees to show proof of vaccination. Goldman Sachs is requiring its employees to disclose their vaccination status, but is not requiring staffers to be vaccinated.

RELATED: Several groups call for mandatory vaccinations for healthcare workers


But ultimately, the rise in the delta variant and breakthrough cases in fully vaccinated people has "served as extra motivation for employers to take a stronger stand on vaccination generally," she said. "Employers are going to be looking toward vaccine mandates more and more."




Most employers are likely to give workers some options if they don’t want to take the vaccine. For example, New York City and California have imposed what's being called a "soft mandate" — workers who don’t want to get vaccinated can get tested weekly instead.

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If an employer does set a hard requirement, employees can ask for an exemption for medical or religious reasons. Then, under EEOC civil rights rules, the employer must provide "reasonable accommodation that does not pose an undue hardship on the operation of the employer’s business." Some alternatives could include wearing a face mask at work, social distancing, working a modified shift, COVID-19 testing or the option to work remotely, or even offering a reassignment.


It's too early to tell.

"Every employer that decides to mandate vaccination paves the way for other employers to feel safer doing so," said Masling.

A recent legal decision may help move the needle. In June, a federal district court in Texas rejected an attempt by medical workers to challenge the legality of Houston Methodist Hospital's vaccine mandate. The court found such a requirement in line with public policy.

Dorit Reiss, a law professor who specializes in vaccine policies at the University of California Hastings College of the Law, said "more businesses will have confidence they can mandate the vaccine."


"I think it’s a reasonable option," she said.


Anderson reported from Nashville, Tennessee.