US employers can legally require their workers to get vaccinated for COVID-19, but it is likely most will choose to make the shot optional instead, employment lawyers say.
Businesses have been weighing up whether or not to implement a mandatory vaccination policy among staff as the release of a coronavirus vaccine to the general public looms.
The fast-tracked development of the shot is a long-awaited breakthrough amid the ongoing pandemic but has also sparked debate over how safe it actually is and if it should be compulsory in the workplace.
Employers generally have the legal authority to require staff to get vaccinated against the virus, though there are some exceptions.
The prospect of the coronavirus vaccine being widely available to the public has raised questions about whether it should be made mandatory at the workplace. Pictured: A clinical trial patient being vaccinated
HHS officials said on Tuesday that they’re prepared to distribute 6.4 million doses of Pfizer’s coronavirus vaccine in the first wave of its rollout as soon as the shot is given its expected FDA emergency approval next month
And conversely, workers have the right to object to mandatory vaccinations under anti-discrimination laws such as Title VII of the Civil Rights Act, which allows employees to be exempt if it goes against a ‘sincerely held religious belief’.
Likewise, those with medical disabilities can request an exemption under the Americans with Disabilities Act (ADA).
But like all legal frameworks, there are exceptions and variations depending on the employer and jurisdiction – meaning imposing a mandatory policy can present a difficult and time-consuming process for employers.
Legal experts believe the major task as well as the liability that will fall on companies requiring mandatory shots will make most employers stray away from those programs.
Pharmaceutical manufacturers – Pfizer and Moderna (pictured) have reported effective results in their trials
Dr Robert Redfield said the first batch coronavirus vaccines will likely roll out across the US starting the second week of December
Leading labor and employment law firm Ogletree Deakins, which recently formed a advice task force due to an influx of queries from employers, says companies should consider the ‘politicized nature’ of the virus and expect objections if they choose to make the vaccine mandatory.
‘If large numbers of people feel the need to be exempt from wearing a mask (which is significantly less intrusive than receiving a vaccination), then employers likely can expect an equal or greater objection to a new vaccine,’ attorneys James Paul, Bret Daniel and Jimmy Robinson said.
LEGAL EXEMPTIONS FOR MANDATORY VACCINATION PROGRAMS
Religious Accommodations Under Title VII of the Civil Rights Act of 1964
The law prohibits employers from discriminating against any individual because of their race, color, religion, sex, or national origin.
This means employees can request an exemption to mandatory vaccination programs due to a ‘sincerely held religious belief.’
Establishing the case may be challenging depending on how jurisdictions define religious beliefs.
Personal or ethical objections or personal anti-vaccination positions are not covered by this law.
Medical Accommodations Under the ADA
Under the Americans with Disabilities Act (ADA), employees can object to a mandatory vaccine policy for medical reasons.
The worker is required to prove they have a medical condition that makes it unsafe to get a vaccine.
The Occupational Safety and Health Act of 1970
Section 11(c) of the act pertains to whistle blower rights.
‘An employee who refuses vaccination because of a reasonable belief that he or she has a medical condition that creates a real danger of serious illness or death (such as serious reaction to the vaccine)’ may be protected under this law.
The law firm said it will also be difficult to predict how rules surrounding required vaccinations will translate in the pandemic era.
Current case law applies to those in the healthcare industry which is considered a high-risk work setting, therefore other employers may have a harder time fighting for those policies in court, according to the firm.
However, the severity and novelty of the coronavirus has also prompted exceptions by the US Equal Employment Opportunity Commission.
The EEOC earlier this year designated it as a ‘direct threat‘ meaning an infected person poses or a ‘significant risk of substantial harm’ to others.
The updated standard allows ‘more extensive medical inquiries and controls in the workplace than typically allowed under the ADA.’
A direct threat ‘permits employers to implement medical testing and other screening measures the ADA would usually prohibit.’
Despite this, the law firm noted the EEOC has been ‘traditionally hostile’ to mandatory vaccination programs.
The Occupational Safety and Health Administration (OSHA) however is more likely ‘to defer’ to such policies.
However OSHA is neither without its exemptions to the rule.
During the H1N1 influenza in 2009, the agency said an employee could be entitled to whistle blower rights if they refuse vaccination due to a ‘reasonable belief that he or she has a medical condition that creates a real danger of serious illness or death’.
Legal experts advise employers stay across new vaccine guidance that will likely be issued by federal and state authorities once the vaccine is approved.
‘Imposition of a mandatory COVID-19 vaccine will almost certainly result in a slew of accommodation requests – medical, religious, personal, and ethical—fueled by mistrust of political leaders and the healthcare industry,’ Olgetree Deakins said.
On Tuesday, Centers for Disease Control and Prevention (CDC) director Dr Robert Redfield predicted coronavirus vaccines will likely start rolling out across the US the second week of December.
US officials also said they plan to release 6.4million vaccine doses nationwide in an initial distribution after the first one is cleared by regulators for emergency use.
Three pharmaceutical manufacturers – Pfizer, Moderna and AstraZeneca – have announced early results.
But the rollout faces a patchwork of state plans, a transitioning White House and potential backlash from vaccine skeptics, despite the rising US death toll of nearly 260,000 people.
Biden’s campaign called for $25billion for vaccines to ‘guarantee it gets to every American, cost-free.’
That’s similar to the amount included in both the House and the Senate bills, through different strategies, and Congress previously mandated that vaccines be free.
With fresh legislation stalled, it’s uncertain if states will have the resources needed once the FDA approves the vaccines.
As Congress debates funding, at least two Republican senators are participating in vaccine trials as a way to build confidence among Americans skeptical of the federal effort.
Meanwhile Governor Bill Lee said Tuesday that vaccines will be very important for Tennessee to ‘ultimately really be able to handle’ the pandemic.
But he says he doesn’t foresee vaccine mandates for school districts in Tennessee.
In his words, ‘Vaccines are a choice and people have the choice and will have the choice in this state as to whether or not they should take that vaccine.’
The state’s health commissioner says the first doses could arrive in Tennessee around December 15.
The first wave will be reserved for frontline health care workers and first responders. She says widespread availability would likely be in late spring or early summer.