Employers can Require COVID-19 Vaccination, but there are Exceptions. Here’s what you and your Boss Need to Know.

Q. Can they require the vaccine?

A. The short answer is yes, with some exceptions, attorneys say. The trickier question is whether they should. While many people are eager to get vaccinated, polls show a substantial minority fear the safety of a vaccine that was developed so quickly. Companies are mulling on how to create a safe workplace for all while respecting those concerns. “There is an enormous amount of anxiety out there,” said Barry Hartstein, an attorney in the Chicago office of the labor and employment firm Littler Mendelson. “Employers want a quick fix, they want employees coming back to work, they don’t want employees scared to come back to work,” Hartstein said.

Q. Is it legal for employers to mandate vaccination and fire workers who don’t comply?

A. COVID-19 is such a threat to public health that many employers will be able to make the case that requiring vaccination is “job-related and consistent with business necessity.” That is the standard under the Americans with Disabilities Act that permits employers to make medical inquiries and administer medical tests, Hartstein said. Federal agencies have not yet issued specific guidance for employers. However, in March the Equal Employment Opportunity Commission said employers can require workers to take COVID-19 screening tests, and that rationale will likely be applied to mandatory vaccination, he said. There is also precedent from prior pandemics, including smallpox and the H1N1 swine flu when employers were given leeway to require vaccines.
Dr. Corina Marcu of Hartford Hospital receives one of Connecticut’s first COVID-19 vaccinations on Dec. 14, 2020. Fifteen doses were administered to health care providers and environmental services workers after the Pfizer BioNTech vaccine arrived at Hartford Hospital that morning. Hartford Healthcare officials called it “the dawn of a new day.” (Mark Mirko/Mark Mirko) Workplaces most vulnerable to infection, such as hospitals and other health care facilities, are most likely to require employees to get inoculated. Many hospitals mandate employees get the flu vaccine during non-pandemic times, said Michael LeRoy, a professor in the School of Labor and Employment Relations at the University of Illinois at Urbana-Champaign. Employers of first responders, teachers, and meatpacking workers could also make compelling arguments for a mandate, he said. Employers can fire workers who refuse to get a shot, with some exceptions.

Q. What are the exceptions?

A. If workers can show that a disability or sincerely held religious belief prevents them from getting vaccinated, employers are required by federal law to provide reasonable accommodation. That could include a remote work arrangement, constant mask-wearing at work, or not scheduling unvaccinated employees to work during periods of high transmission rates, LeRoy said. Even so, courts may put more weight on the safety of the workplace than an individual worker’s rights. A federal appeals court in 2018 dismissed a lawsuit brought by a health care professional who claimed disability discrimination after she was fired for refusing to vaccinate for rubella because she worried about an allergic reaction. The court said her “garden variety allergies” didn’t constitute a disability and her job required her to work with vulnerable patients. An employer’s ability to offer reasonable accommodations can determine whether it makes sense to require vaccination, said Nathaniel Glasser, an attorney with labor and employment firm Epstein Becker Green, which represents management. For example, factories or other workplaces where teleworking is not an option may find a mandate is disruptive to the business if they don’t have a plan for addressing people who decline, he said.

Q. What if employees believe the vaccine is unsafe?

A. This is where things get tricky. The speed with which the COVID-19 vaccines were developed and the limited testing on certain populations, including pregnant women, have many people concerned about safety. Surveys have shown rising confidence as the rollout nears, and an ABCNews/Ipsos poll published Monday found 80% of Americans plan to get the vaccine at some point. But other research points to greater wariness. Only half of Americans and a quarter of Black Americans, polled in early December said they would get vaccinated, while the rest said they weren’t sure or would not, according to The Associated Press-NORC Center for Public Affairs Research. Forcing workers to decide between getting a vaccine or losing their job could hurt morale at a time anxiety is already high, and disrupt business operations if enough people refuse, attorneys say.
“Employers will have to decide whether they want to put employees into a position to make that call,” said Paul Starkman, an attorney with Clark Hill who represents management in employment cases. Employees could resist vaccination because of safety concerns and claim protection under the National Labor Relations Act, which protects the rights of employees, both unionized and not, to engage in “concerted activity” regarding employment conditions, Hartstein said. If enough people seek exemptions one way or another, it could dilute the effectiveness of a vaccination program and make a mandate moot, he said.

Q. Is it different for public versus private employers?

A. In some cases there may be a stronger rationale to mandate vaccination among public employees, LeRoy said. For example, police have high contact with the public, so keeping them from getting sick is in the public interest.
But public employees also have constitutional rights in employment that private-sector employees do not, including a 14th Amendment right to due process if they are fired or disciplined. Private sector employees, by contrast, are employed at will and can be fired for any reason as long as it doesn’t violate civil rights, anti-discrimination laws or a contract.

Q. What about unionized workplaces?

A. The case law is mixed on whether employers must bargain with the union on vaccination matters, Hartstein said. Often it depends on the collective bargaining agreement, he said. However, employers will need the support of labor organizations to make a vaccination program successful, whether it is voluntary or mandatory. “Getting their buy-in is going to be critical to the success of a vaccination program if an employer is going to do it,” Hartstein said. Several unions have called for their members to be prioritized for vaccination because they work essential jobs — in food production, grocery stores, and schools — that make them vulnerable to infection. The United Food and Commercial Workers Union did not respond to queries asking if it would support mandatory vaccination for its members. Dan Montgomery, president of the Illinois Federation of Teachers, which represents 103,000 teachers and support staff in the state, seemed open to it. “I think teachers would welcome that,” Montgomery said. “We want to get back in our schools but we want to do it safely. We see vaccination as a path to do that.”

Q. Could employers be held liable if they don’t require their workforce to be vaccinated and people get sick?

A. The Occupational Safety and Health Administration requires that employers provide a safe work environment. OSHA has not said what role a COVID-19 vaccine plays in that, but experts don’t anticipate that the agency will require employers to mandate vaccination. “I think it’s more likely that OSHA would require employers to offer or encourage or allow employees to be vaccinated than to mandate a COVID vaccine,” Glasser said.

Q. How can employers encourage employees to get vaccinated without mandating it?

A. A primary strategy is through educational campaigns to communicate the benefits, safety, and efficacy of the vaccines, Glasser said. Some employers are asking if they should give bonuses to employees who get vaccinated, Hartstein said. He warns that could suggest the vaccine is undesirable or dangerous, which is a perception employers should seek to avoid.

Q. What are employers opting to do?

A. Most companies are thinking about how to strongly encourage vaccination, attorneys say. Even hospitals, whose workers are first in line to get vaccinated, are stopping short of mandating the vaccine. Attorneys are advising their clients to wait for guidance from the government before finalizing a plan. “Think about how you want to handle it without making any final decisions because we don’t know what it’s going to look like once it is done,” Starkman said. “To what extent does the CDC (Centers for Disease Control and Prevention) or other agencies offer guidance about how and whether to mandate it and who gets it when and in what way.” – Source: The Chicago Tribune.

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