EASTON – Employers could try to pressure and force workers to get COVID-19 vaccines as states roll out mass vaccination plans in the coming weeks and months.
Employees who do not wish to receive coronavirus vaccines have some legal protections to resist employer mandates under the American with Disabilities Act.
“The Disabled Americans Act limits the types of medical inquiries employers can make. A requirement that the employee receive the vaccine and then report it to the employer is therefore what the law protects, ”said Suzzanne Decker, attorney and director at Miles & Stockbridge law firms, which have an office in Easton.
However, the fighting could focus on whether employers can convince the courts and regulators that forcing workers to get vaccinated against COVID is essential to their business.
“The ADA requires that the exam and medical requirements (such as a vaccine) be job-related and business need,” Decker said.
Joyce Smithey, director of Smithey Law Group in Annapolis, expects employers to follow the path of business need to vaccinate workers.
Smithey said a significant number of employers will rely on the business need argument to mandate vaccinations for workers.
“For most employers, they can force it,” said Smithey, who expects many industries to make the necessary argument due to the grave impact of the virus.
Hospitals, nursing homes, and other healthcare workplaces are allowed to mandate flu and other vaccinations for employees to protect patient health.
“This would just be a continuation of that,” said Smithey.
Some employers will be campaigning for vaccinations to reopen the economy, and seek support from the courts, as well as state and federal agencies such as the Equal Employment Opportunity Commission (EEOC) and the OSHA.
“It is unclear whether the allowance can be granted to all types of employers due to the severity of the COVID. The Equal Employment Opportunity Commission left this question open in its updated guidelines for COVID-19 on Pandemic Preparedness at the Workplace and Americans with Disabilities Act, ”Decker said, referring to the federal agency guidelines earlier this year.
“Employers are confident that the EEOC will believe employers may need a vaccine,” Decker said.
A new administration in Biden in January is also expected to be more in favor of vaccinations than President Donald Trump, who has advocated a COVID vaccine but may no longer support private sector efforts to force employees to get them receive.
Smithey also expects courts and government agencies to be hospitable to potential employers in the area of COVID vaccines.
Employees with religious beliefs who oppose vaccines, as well as employees with medical conditions that can result in harmful reactions to a vaccine, have legal support.
“Employees can apply for an exception under the ADA. They need to prove that they have a disability and that the vaccine would be harmful in relation to that disability, ”Decker said.
Smithey added that these employees in both groups may need to continue wearing masks and practice social distancing after other obligations for employees receiving COVID vaccinations could be lifted.
“I think we’ll see some of that,” said Smithey.
The vaccination problem can be fraught with a number of complications as it becomes available to the public.
Decker only points to one example.
“It has been reported that certain airlines require proof of a vaccine for international travel. If an employee’s work requires international travel, the employer may require the employee to travel internationally, which would include vaccination. The ADA wouldn’t restrict this type of requirement, ”Decker said.
Public opinion polls have shown considerable skepticism and opposition to a COVID vaccine – including in Maryland. A Goucher College poll in October found that 61% of African Americans, 55% of voters in rural Maryland (including the East Coast), 53% of Conservatives, and 50% of women in the state said they would not get a COVID vaccine.
That was before the election and Biden’s planned victory and the drumbeat of high success rates for COVID vaccines.
Still, employers and the medical community must overcome resistance to vaccination.
The state of Maryland has no plans to require residents to get a COVID vaccine, said Charles L. Gischlar, spokesman for the Maryland Department of Health.
During a press conference in Annapolis on Tuesday, December 1st, Dr. David Marcozzi, Senior Medical Advisor to Maryland Governor Larry Hogan, encouraged residents to get a COVID vaccine.
“If it’s available to you, get one,” he said.
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