Will the COVID Vaccine Be Mandatory to Go Back to Work? Here’s What Experts Are Saying

Woman with mask


Laura Berlinsky-Schine
Laura Berlinsky-Schine2.3k

The U.S. Food and Drug Administration (FDA) authorized the Pfizer vaccine for emergency use (called an emergency use authorization or EUA) for the prevention of COVID-19 on December 11, 2020. Days earlier, the UK had become the first Western country to authorize the vaccine, which Pfizer and BioNTech, its German partner, began developing 11 months ago. This is only the second time the FDA has issued emergency authorization for a vaccine; the first EUA was for a vaccine against anthrax in 2005 

This comes as welcome news for so many, but questions still persist. Vaccines usually take significantly longer to be approved for use, prompting some people to be concerned about the reduced timeline. (A study of around 44,000 people found the vaccine to be 95% effective.) With the vaccine set to start shipping in a matter of days, many are also wondering if they’ll have to take it by law or if their employers can make vaccinations mandatory.

Will the COVID vaccine be mandatory for US Citizens?

There is a precedent for a federal mandate requiring citizens to be vaccinated. In the 1905 US Supreme Court case Jacobsen v. Massachusetts, a Cambridge, Massachusetts resident brought a lawsuit against the state for compelling residents to be vaccinated against smallpox or be fined $5. 

The Supreme Court ruled that states could use police power protect the health and safety of the public, saying, "The rights of the individual may at times, under the pressure of great dangers, be subjected to such restraint to be enforced by reasonable regulations as the safety of the general public may demand.”

This means that states could, in fact, make COVID vaccinations mandatory.

Whether they will is another story. President-elect Joe Biden said he does not intend to do so when the vaccine becomes widely available. "I will do everything in my power as president to encourage people to do the right thing and when they do it, demonstrate that it matters," he said. 

Can employers make the COVID vaccine mandatory?

The short answer is yes, in some cases, employers will be able to make the COVID vaccine mandatory for their employees. Will they actually do it? That depends.

Legal precedent.

There is no precedent for employers requiring vaccinations during the EUA phase, according to Robert Field, a law and public health professor at Drexel University. But there is precedent for the requirement once the vaccine has gone through the full FDA licensing process. For example, some employers, particularly those in the healthcare sector, legally require employees to receive the flu vaccine.


Under the Americans with Disabilities Act (ADA) and Title VII of the Civil Rights Act of 1964 respectively, some individuals are exempt from having to get the flu vaccine for medical reasons or if getting the vaccine violates their religious beliefs. 

The U.S. Equal Employment Opportunity Commission (EEOC) is currently determining whether and how the ADA and Title VII could apply to taking a COVID-19 vaccine.

Again, given that the vaccine hasn’t undergone a full review yet, questions remain about how it could affect different groups and individuals, such as children and pregnant people. There could be clearer exceptions to employers being allowed to require employees to take the vaccine once the implications come to light.

If there is a case for exemptions, employers might be able to require a “reasonable alternative,” according to Dorit Reiss, a law professor at the University of California, Hastings. For example, they might require employees who haven’t been vaccinated to wear a mask, assuming it’s just as safe as getting the vaccine.

Employers who are likely to require COVID vaccinations.

Not all employers are likely to require COVID vaccinations. Healthcare organizations and facilities are probably at the top of the list of those who will — even if employees aren’t working directly with patients, they’re still routinely exposed to colleagues who are and are one of the highest risk groups for contracting the virus. Those working with especially vulnerable populations, such as nursing home employees, are also likely to be required to get the vaccine.

Businesses in which employees frequently interact with customers and clients could also require vaccines for their workers. Restaurants, bars, gyms, grocery stores, airlines, schools, daycares and salons are some examples. 

Brett Coburn, a partner Alston & Bird, cautions that employers will probably need to make rules that apply to all their employees, rather than risk discrimination lawsuits, with the exception of some circumstances, such as applying the mandate to employees who work with customers versus those who don’t.

Of course, these are only a few examples of employers who might require vaccines once they are widely available and have been fully reviewed.

Likelihood of enforcement.

Some employers, such as those in the healthcare sector, may well require the COVID vaccine and enforce compliance. Others are less likely to.

The percentage of Americans willing to take the vaccine has grown — a Gallup poll published on December 8th found that 63% said they were willing to get immunized against COVID — but many are still reluctant.

Employers could face backlash if they attempt to enforce a COVID vaccine rule. Rather than legally require it, Lawrence Gostin of the O’Neill Institute for National and Global Health Law at Georgetown Law School suggests making noncompliance difficult, such as having employees who refuse to be vaccinated sign a form explaining why they won’t. He also noted that a global survey he coauthored found that a majority of employees would get vaccinated if their employer recommended that they do so — suggesting that encouragement could be a motivating factor in getting employees to comply.

Communicating and giving employees plenty of access to information, such as where and when they can get the vaccine, is also an important step. 

Currently, essential workers and the most vulnerable populations are being prioritized for vaccination. We’re still months away from a COVID vaccine being widely available, and for the most part, it remains to be seen how it will be distributed to ensure that people have access to it. Employers will need to stay abreast of information surrounding vaccine development and their own employees' questions and concerns.