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Home » Employer vaccine mandates for COVID-19 – a legal and ethical discussion

Employer vaccine mandates for COVID-19 – a legal and ethical discussion

A recent article about employer COVID-19 vaccine mandates, by Professors Dorit Rubinstein Reiss and Arthur Caplan, examined its legal and ethical issues. Their thought-provoking analysis should be part of our discussions about the new vaccines.

I think that employer vaccine mandates, especially during this COVID-19 pandemic, are something that should be considered everywhere. However, employer mandates are very controversial, with ten states already considering prohibitions to them.

I am going to excerpt some of their points in the article while adding my own thoughts on the topic. I think this is worthy of a wide discussion.

employer vaccine mandates
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Employer vaccine mandates

The article, posted in Barron’s, was written by Professor Dorit Rubinstein Reiss, Professor of Law at the University of California Hastings College of the Law and a frequent contributor here, and Professor Arthur Caplan, Division of Medical Ethics at NYU School of Medicine.

Their article started with some important points:

It is generally legal in the United States for an employer to fire employees refusing to follow workplace rules, with a few exceptions. While we would never cheer anyone’s unemployment, this is the right state of affairs legally and ethically, and there is no good reason to treat Covid-19 vaccine requirements differently.

At least 10 states have proposed bills prohibiting private employers from mandating that their workers must be vaccinated against Covid-19 as a condition of their employment. Such bills are ill-conceived and unwise. If enacted they would unfairly interfere with the right of employers to safely run their businesses. They are also unnecessary since federal law already protects certain employees against unjust discrimination.

Clearly, COVID-19 has changed the dynamics of employer vaccine mandates – this disease strikes adults more frequently and has a high immediate mortality risk. The vaccine will not only protect the lives of employees but also will help our economy. That seems like a double benefit.

Professors Reiss and Caplan discuss this very point:

Covid-19 has not only killed hundreds of thousands of Americans and harmed tens of millions more, but it has also had a dramatic and traumatic effect on American business. Many small businesses have closed. Others have lost huge sums of money or had to severely reduce their hours or the numbers of customers they serve. Many have had to let employees go, whether through the direct effect of the pandemic on overall workforce health because people are afraid to take jobs in high-exposure locations, or because of important public health measures.

Covid-19 vaccines offer hope both in reducing death and for the ailing economy. The vaccines are safe and they work. Businesses from airlines, hotels, and restaurants to nursing homes and manufacturing plants see having a highly vaccinated workforce as a way to protect themselves from future outbreaks.

That sounds like a win-win situation for the employee themselves, the employer, and the overall economy. I am troubled that anyone would be opposed to his, but I’ve been around the anti-vaccine world for over two decades, so nothing surprises me anymore.

employer vaccine mandates
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Why it’s OK

In general, Federal and State laws give broad latitude to employer rules to protect the health safety of its workers and customers. That’s why a construction site requires hard hats or healthcare workers disposing of sharps into locked containers.

Hospitals regularly require their employees to get properly vaccinated for everything – that’s been fought in the courts. It just makes sense that in order to bring a stop to this pandemic and open up the economy, employer mandates for COVID-19 vaccines make sense.

As Reiss and Caplan write regarding the healthcare industry:

Many healthcare facilities already require a set of vaccines as a workplace condition, including for mumps, measles, rubella, hepatitis B, and annual influenza vaccines. Some restaurants have required workers to get the hepatitis A vaccine, especially after outbreaks. With a few local exceptions, states largely allow employers to require vaccines. Why treat Covid-19 vaccines differently?

The law traditionally allows private companies to set work conditions that protect their employees and customers. Usually, if the state interferes, it is to add safety measures, not to prohibit employers from acting to increase safety. Singling out safe and effective Covid vaccinations as somehow intrusive in a workplace full of less impactful safety requirements makes no sense.

woman standing in cafe with open sign
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The reality of COVID-19 vaccine mandates

However, despite the vast fear of Bill Gates ordering every employer to push the COVID-19 vaccine because of some conspiracy, the truth is much more reasoned:

Most employers are unlikely to mandate Covid-19 vaccines right away. A recent survey found less than 1% of respondent companies had vaccine mandates in place. That jibes with informal polling we have seen of 10 Fortune 500 companies, which showed none ready to mandate. In fact, employers looking at increasing vaccination rates are currently examining different incentives to encourage workers to do so. Starbucks is offering two hours of paid time off for each shot. Others are paying workers to be inoculated, including Lidl with $200 in extra pay, and Kroger offering $100.

If a private company decides that a mandate is the best tool to protect its workforce and customers, then the state should not prohibit it. After all, a private employer can traditionally decide whom to hire for any reason, with few exceptions based on existing anti-discrimination laws. Nobody has a right to force a private company to hire safety rule-breakers. People cannot say, “I don’t like your rules, I won’t follow them. Forget your hard hat or your handwashing. You have to employ me anyway.”

That’s essentially what the anti-vaccine side is saying about these mandates – “employ me anyway, because I have a right to catch a deadly disease and pass it along.” Or they don’t think the disease exists (which is a whole other story).

I’m also not opposed to bribing one’s employees, especially since the benefit far outweighs the costs to the employer. Using my own personal anecdote, I worked for a healthcare company that required the flu vaccine of every employee. We hired student nurses (who were supervised by a nurse faculty member) to vaccinate every employee and their guest right before our big holiday party bash. It became part of our company culture, and maybe one or two out of a thousand employees refused. I bet we could do the same thing for COVID-19.

Reiss and Caplan conclude with this:

Workers have a right to a safe workplace. Customers may also want a safe environment, and may prefer businesses that offer it. If the employer considers that a vaccine mandate is the best way to get to a safe workplace or if a private business desires to present itself as taking all measures to reduce Covid-19, including mandating vaccines, it should be able to choose that option.

No one is saying that an employer must mandate vaccines. However, if they think it’s the best way to protect their valuable employees and customers, then it should be their choice and they should not be restricted from doing so by state governments that have had a miserable record in managing this pandemic.


Michael Simpson

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