There is not yet a COVID-19 vaccine approved for general use in the United States. Following promising clinical trials by Moderna and Pfizer, many Americans are wondering when they will soon have access to a vaccine and whether vaccination will be a job requirement.
Employers must adhere to federal and state laws, but so far there has been no strong appetite for a federal COVID-19 vaccine mandate. In August, Dr. Anthony Fauci, the nation’s leading infectious disease expert and a key member of the White House’s coronavirus task force, said he would “definitely not” support a nationwide mandate for the COVID-19 vaccine. “We do not want the federal government to issue a mandate to the general population. It would be unenforceable and inappropriate, ”said Fauci.
States and cities have prescribed vaccines in the past. The 1905 Jacobson v Massachusetts Supreme Court upheld a state’s mandatory smallpox vaccination law. But even if a government mandate is not met, could your employer still make it compulsory to get a COVID-19 vaccine once it becomes widely available?
Employers can likely prescribe a vaccine, but they must first consider workers’ rights.
Florida-based labor attorney Donna Ballman said employers, with exceptions, can likely prescribe a COVID-19 vaccine. If you are any employee, “employers can say yes, provide evidence that you have been vaccinated, or fired, or unable to enter, or need to work remotely.” Ballman noted that for unionized workers, collective agreements must be consulted before a mandate .
Lawrence Gostin, a professor of global health law at Georgetown University, said he could foresee a number of employers that will require employees to receive a COVID-19 vaccine once it becomes widely available. He pointed to hospitals and health care facilities that already require influenza vaccines as a condition of employment.
“These were considered legitimate as the employer was not breaking any law. That is, they do this for the health and safety of their employers and their customers, and they have an obligation to protect their employees and customers. And they don’t discriminate based on gender, race or disability, ”he said.
“It’ll be more complicated than just signing a memo like ‘OK, everyone has to get the vaccine’.”
– Donna Ballman, employment lawyer
But employees also have rights.
“Once you have a mandate, you may have to pay people for their time to get it,” Ballman said. “It’ll be more complicated than just signing a memo like ‘OK, everyone has to get the vaccine’.” Ballman said a staff member was laid off because he couldn’t physically get the vaccine on his own timeline. That could also be. “viewed as discrimination based on disability.
In its 2009 Pandemic Preparedness Guidelines, the Equal Employment Opportunity Commission (EEOC), which enforces federal anti-discrimination laws, stated that people with disabilities covered by the Disabled Americans Act and people whose religious beliefs fell below Title VII of the Civil Rights Act may be eligible for an exemption from a compulsory flu vaccine. Regarding a possible COVID-19 vaccine mandate, the EEOC told HuffPost that it was actively considering how a potential vaccine would interfere with employers’ obligations under the Americans with Disabilities Act, Title VII of the Civil Rights Act of 1964, and the other laws Interaction would occur the commission enforces. “
What about guidelines from other federal agencies? According to the general mandatory clause of the occupational health and safety authority, employers must provide a workplace that is “free of recognized hazards that cause or likely to cause death or serious injury to their employees”. So far, OSHA has not said what its employer guidelines for COVID-19 vaccines will be. Gostin said he doesn’t think OSHA will require employers to commission vaccines, “but I could foresee that they would advise them to make COVID vaccines available to employees in the workplace.”
The Centers for Disease Control and Prevention declined to comment on their employer’s recommendations for a COVID-19 vaccine.
Instead of a mandate, employers could also make it harder to turn down a COVID-19 vaccine.
Mandates aren’t the only option employers plan on.
“Most customers right now tend to be promoting rather than asking for the vaccine just because there are so many unanswered questions,” said Sharon Perley Masling, director of work culture advice at Morgan Lewis law firm.
Masling said these unanswered questions include whether a COVID-19 vaccine approved under an emergency authorization will be treated the same as if it were fully approved by the Food and Drug Administration; whether and under what circumstances a vaccine will be available to employees; and what would be the side effects of vaccination.
“I think it’s wise for employers to start planning, but these plans will be revised as we get more information,” said Masling.
Regardless of whether companies opt for COVID-19 vaccination or not, their recommendations are expected to have a significant impact on employees’ health decisions. Gostin co-authored a survey in June that asked 13,426 people in 19 countries about their acceptance of a COVID-19 vaccine. About 61% said they would likely get a COVID-19 vaccine if their employer recommended it.
Instead of an employer mandate, small nudges like employee access to a vaccine can make a difference. Research has shown that the more an employee visits a local vaccination clinic, for example, the more likely it is that they will be vaccinated.
Gostin said making COVID-19 vaccination the norm at work could be an effective way to increase the number of employees vaccinated. In this scenario, employers would offer it to all of their employees, and if an employee refused to get one, they would have to sign a form or get a medical certificate explaining why. According to Gostin, research has shown that these additional hurdles increase employee compliance with vaccinations.
“That little nudge that just makes it a little harder to say no means more people are saying yes,” said Gostin. “You can achieve the same goal without a mandate.”
Experts are still learning about COVID-19. The information in this story is known or available at the time of publication. However, guidelines may change as scientists learn more about the virus. Consult the Centers for Disease Control and Prevention for the most current recommendations.