Will you be forced to take the Covid vaccine? Will your job make the vaccine mandatory? Will you take it or leave your job?
As COVID-19 vaccines become available, many employers will have a strong case for requiring employee vaccinations, so long as their vaccination policies have certain exceptions, are job-related and are consistent with business necessity, legal experts say.
Exceptions must be made for employees who cannot be vaccinated because of disabilities or due to sincerely held religious beliefs, he added. Employers do not have to accommodate secular or medical beliefs about vaccines.
“Some companies will have strong justifications to require their employees to be vaccinated,” according to Gary Pearce, chief risk architect for Aclaimant, a safety and risk management firm in Chicago, and Jody McLeod, an attorney with McLeod Legal Solutions PLLC in Charlevoix, Mich., in an e-mail. “The more likely it is that nonvaccinated employees put customers, fellow employees or the general public at risk, the more compelling the case will be for a vaccination mandate.”
Business Necessity May Vary in Different Industries
Context matters when deciding whether to mandate vaccines. Health care, travel, retail or other businesses whose employees are at risk or who present a risk to others will have more business reasons to be “pro-vaccine,” said Jon Zimring, an attorney with Greenberg Traurig in Chicago.
COVID-19 vaccinations are a polarizing topic for many employees. What’s welcome to employees in one location might be unpopular at another site.
Liability for Not Requiring Vaccination?
Kranz said that if a mandatory vaccination policy is not imposed, employees may allege that the employer has failed to provide a safe and healthy work environment, which is required by the Occupational Safety and Health Act.
Available guidance indicates apparent support by several government agencies for mandatory vaccination policies, said Diane Welch, an attorney with McDonald Carano in Las Vegas.
For example, based on the findings of the U.S. Centers for Disease Control and Prevention, the Equal Employment Opportunity Commission (EEOC) has determined that COVID-19 meets the “direct threat” definition. “During the pandemic, employers have relied on this guidance to justify asking employees more in-depth health-related questions and performing medical screening of employees before allowing them to report for work,” Welch said. But “the EEOC has not yet issued guidance for how it will view mandatory vaccine policies.”
In addition, unionized employers probably will need to address collective bargaining obligations before the organizations communicate vaccination policies, Kranz noted.
Individual states may determine how the vaccines will be made available, said Deborah Schroeder-Saulnier, Ph.D., founder and CEO of Excel Leadership Solutions in St. Louis. According to Scientific American, the vaccine is expected to first go to high-risk workers in health care facilities plus first responders, then people with underlying conditions that put them at high risk, then teachers, next young adults and later everyone else.
“For some employers, implementing a mandatory vaccination policy makes sense, particularly for employees in positions that provide direct health care, caretaking of children and the elderly, or serving other populations at elevated risk from COVID-19,” Welch said. “However, there are several important exceptions to a mandatory vaccine policy, making a policy that encourages—but does not require—vaccination easier to administer for many employers.”