Is it legal for employers to require their employees to get the COVID-19 vaccine?

Just as wars usher in periods of sweeping mandates, so too has the pandemic. The CNMI, for instance, witnessed mandatory mask wearing, months of curfew, and even the closing of parks, beaches, and a variety of locations around the islands. Meanwhile, other states endured extended lockdowns and an assortment of other restrictions.

The latest fault line is vaccination. Some people support aggressive and widespread vaccination with the goal of reaching herd immunity as fast as possible. For them, the sooner people get vaccinated, the sooner life returns to some version of normal. But other people are skeptical of the vaccines. They are concerned about how quickly the vaccines were developed and whether they are actually safe. As a result, this group would prefer to take a wait-and-see approach before getting vaccinated.

This divergence poses a conundrum for employers: Should they require their employees to get the vaccine? Some employers have said no. For instance, Chipotle Mexican Grill, a massive burrito chain in the United States, encourages its employers to get vaccinated but does not require vaccination. The CNMI Executive Branch, on the other hand, mandated that most of its employees get vaccinated.

Was it legal for the CNMI Executive Branch to require its employees to get vaccinated? Yes. At least according to the U.S. Equal Employment Opportunity Commission, which noted that employers can set rules that protect the health and safety of its workplace.

But exceptions exist. For example, people with disabilities or “sincerely held” religious beliefs may skip the vaccine unless doing so poses a significant risk to the rest of the workplace and there is no reasonable accommodation that can be made to mitigate the safety risk. For instance, if an employee opted out for religious reasons and worked in a job where they did not work in close physical proximity to other employees or the public, then it could be tough for the employer to compel the employee to get vaccinated. Likewise, it would be questionable to force a person to vaccinate if their job can be done remotely. But if the employee works as a cashier or a food handler, the employee might need to decide between getting the vaccine or leaving their job.

That brings us to the next question: What happens if an employer requires vaccinations and then an employee suffers an adverse reaction? Though exceedingly rare thus far, adverse reactions have happened. In such cases, an employer-mandated vaccination would probably be considered part of work. So, any injuries would likely be covered by workers’ compensation insurance, a type of insurance that every CNMI employer must obtain. If so, this insurance would be the only recourse that an employee could seek.

How about the time the employee spends obtaining the vaccination, do they get paid for their time? Yes. If an employer requires a vaccination as a condition of employment, then the employer must pay for the time it takes to get the vaccination.

Until recently these issues have largely been on the back burner because the vaccines were restricted to the elderly, front-line workers, and a few other groups. Thus, few people in the workforce could obtain the vaccine regardless of company policy. But with the recent announcement that the vaccine will now be available for everyone over 16, CNMI employers need to decide how they want to handle vaccination: Should they copy the Chipotle approach or mimic the CNMI Executive Branch’s mandatory policy? And, similarly, employees need to decide how they should respond to those policies. If you have questions, consider contacting an attorney familiar with employment-law topics.

This column is for informational purposes only and is not intended to be taken as legal advice. For your specific case, consult a lawyer.