Scientists say it will take about 70% of the US population to get vaccinated to reach the herd immunity threshold that would effectively end the COVID-19 pandemic. Michael LeRoy, an expert in labor law and industrial relations at the University of Illinois, Urbana-Champaign, spoke with Phil Ciciora, the news bureau’s business and legal editor on the legality of employers mandating that workers vaccinate themselves against the novel coronavirus.
Can an employer legally require an employee to receive a COVID-19 vaccination?
In most cases, yes. In 2018, a federal appeals court dismissed a lawsuit by an employee who denied their employer’s obligation to vaccinate against rubella with the measles, mumps, and rubella vaccine. The employee alleged discrimination under the Americans with Disabilities Act, arguing that she might be allergic to the shot. The court put more emphasis on the fact that she was a health professional who could make clients sick.
But here’s the main point: if the employer can demonstrate that vaccination is job-related and a business need, an employee who refuses to vaccinate can be legally fired.
Now it might sound like employers are violating a worker’s personal freedom about their bodies and what they put into it. In reality, however, no one has a legally enforceable right to any particular job.
If someone wants to choose the freedom not to vaccinate over a job, they can make that choice. In any case, US labor law has a core principle of employment at will. Your employer can fire you for any reason at any time, as long as it doesn’t violate a law or contract law.
What about religious objections to vaccination?
This area offers some opportunities for vaccine objectors. However, it is not so easy to say, “I will not vaccinate because of my religion.” The burden of proof is on the employee to show how his religious beliefs are being violated.
But let’s suppose that happens. The employer must then offer adequate accommodation. In general, health care facilities have allowed religious objectors to have the flu vaccinations continue, provided they always wear a mask when working. I have not seen a case where a religious objector has the right to avoid vaccination and a parallel right to avoid an alternative mitigation method such as masking.
How far can state and local authorities go to require first responders or teachers to vaccinate?
I was researching this question when Congress passed the Smallpox Emergency Personnel Protection Act after September 11th. National security experts believed our nation was vulnerable to a smallpox bioterror attack – an attack that could have a 30% death rate for exposed people. Congress offered up to $ 262,000 in disability insurance to rescue workers to get a smallpox vaccination. Less than 40,000 of the 500,000 workers identified as emergency services by the federal government were vaccinated.
Regarding the request for a vaccine, the 1905 Jacobson v Massachusetts case of the US Supreme Court confirmed the state’s authority to require people to be vaccinated against smallpox. Since many first responders and teachers are public employees, this age-old case would likely apply to them today.
What should an employer do after viable vaccines become available in a few months? Should they start talking to staff about vaccinations? Especially if this employer is a restaurant, bar, or other community?
Initially, the Trump administration was heavily criticized for failing to use its powers over the labor protection agency to enact emergency regulations for industries such as meat packaging, passenger transportation and online retail fulfillment centers, where many workers became seriously ill and some died last spring.
The Biden government is likely to be more aggressive. Vaccinations may be required in industries and settings outside of healthcare.
To the restaurant and bar owner, I would simply say that Republican lawmakers continue to push for widespread employer immunity from lawsuits arising from COVID-19 exposure events. This means that these lawmakers recognize the possibility that potential broadcasting outlets such as restaurants and bars could be sued for negligence.
If I own a restaurant or bar, I would deal with these issues and check whether my industry is regulated in 2021 – and if so, whether the Congress or my state parliament exempt my company from liability in connection with COVID-19 .