Could Employers Make the Covid-19 Vaccine Mandatory?

Even though a vaccine to prevent COVID-19 is available, it’s not too early for employers to start considering whether they will require their employees to get the vaccination when it will be available for everyone. For example, The U.S. Occupational Safety and Health Administration has stated that employers can legally impose a flu vaccine requirement on their workforce, but employees have the right to request medical or religious exemptions under federal anti-discrimination laws. Each claim must be evaluated on its own merits, a time-consuming process for employers.

While it may be legal for employers to make it compulsory for their workers to get the COVID-19 vaccine, doing so would be a huge, difficult task. A recent Gallup poll found that 42% of Americans say they will not get the COVID-19 vaccine, although it must be said that the poll was conducted before the recent optimistic vaccine results.

From an employer’s standpoint, it is a no-win situation in any way we look at it. Those who decide to mandate the vaccine will need protection against someone having an adverse reaction, even if the employee has signed a waiver upon receiving the shot, he says. Contrarily, companies that decide against a mandate will need protection if someone does contract the virus in the workplace and sues.

Assuming the employer has a legitimate concern for the health and safety of its workers, customers and anyone else in its workplace, it’s easy to imagine how a coronavirus vaccine refusal would result in an undue burden on the employer in most situations.

However, it’s also possible there is an accommodation that imposes only a minimal burden on the employer and provides an equivalent level of protection from coronavirus infection or spread. Depending on the nature of the job, this might allow the employee seeking the vaccination exemption the ability to work from home or with a mask on.

Legal Precedents

One exception falls under the Americans with Disabilities Act also known as ADA. Under the ADA, “an employer must provide reasonable accommodations to workers who have medical conditions that make them unable to take the vaccine, if a reasonable accommodation is possible.”

The technical question here was whether employers could impose COVID-19 vaccination because the Americans with Disabilities Act severely limits the ability of employers to require medical examinations. In its Dec. 16 guidance, the EEOC clearly stated that COVID-19 vaccines do not fall in the “medical examination” category

Another exception is covered by Title VII of the Civil Rights Act of 1964. Title VII says employees may be able to refuse vaccinations if they have a sincerely held religious belief that precludes vaccination, and not being vaccinated doesn’t impose an undue hardship on the employer. However, it must be stated that ‘a personal or a political opposition to the vaccine is not sufficient.’

Employees and Lifestyle Status

“Employers can and have fired employees based on lifestyle choices related to their health, including if they smoke cigarettes or drink alcohol,” stated Holly Helstrom – adjunct instructor at Columbia University who teaches First Amendment rights for employees.

“Refusal to get a COVID vaccine if your employer is requiring one could get you fired and your employer would be within their legal rights to do so,” she has also gone on record saying.

According to Helstrom, “your employer is within their legal rights to require you to get a COVID vaccine, if you work for a private sector at-will employer.” She has stated that this is a product of how U.S. labour law and the Constitution are written. For unionised workers, rules around vaccination “would likely be a subject for bargaining,” Helstrom has also said.

Coronavirus Employee Vaccination Policy

Even if the law allows an employer the legal right to mandate that employees receive a coronavirus vaccine, it may not be worth the risk to institute such a policy.

One form of risk comes from a scenario where an employee suffers a severe side effect from the vaccine. That may result in a workers’ compensation claim that the employer must deal with.

Another risk could come from public backlash. Given how politicised the coronavirus and its vaccine has become, any vaccine policy around it will most likely upset a lot of people.

According to Gallup, if a free, FDA-approved coronavirus vaccine were available today, 35% of respondents said they would not get vaccinated. This shows that any opposition to the coronavirus vaccine is not just limited to people who have a general opposition to vaccines.

In light of the resistance some people have to mask wearing, because a vaccine is more invasive and potentially dangerous, it’s easy to see why so many people will be resistant to a coronavirus vaccination requirement.

What might be best is for employers to simply recommend their employees get the coronavirus vaccine and hope most of them do so. There’s also the possibility that a state might establish a legal requirement for certain employees to get vaccinated. This would allow some employers to avoid any blame when it requires its employees to get the vaccine to protect them from the coronavirus.

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Sources:

https://theconversation.com/can-employers-require-workers-to-take-the-covid-19-vaccine-6-questions-answered-152434
https://www.shrm.org/resourcesandtools/legal-and-compliance/employment-law/pages/coronavirus-employers-vaccine-pandemic.aspx
https://www.npr.org/2020/11/25/937240137/as-covid-19-vaccine-nears-employers-consider-making-it-mandatory?t=1608807495700