Two COVID-19 vaccines are on the horizon. Can your employer require you to get one?
At least two pharmaceutical giants have announced possible coronavirus vaccine candidates in recent weeks, and infectious disease expert Dr. Anthony Fauci told NPR they could be available as early as next month.
While widespread distribution is likely a ways off, the question of whether employers can require workers to get the vaccine looms large.
Legal experts largely agree that employers are within their rights to institute a COVID-19 vaccine requirement once it’s approved by federal authorities and available to the masses. But there are some exceptions, and the Equal Employment Opportunity Commission has leaned in favor of a softer approach with the flu vaccine.
“Generally, ADA-covered employers should consider simply encouraging employees to get the influenza vaccine rather than requiring them to take it,” the EEOC said in March.
The commission was referring to how the Americans with Disabilities Act should be applied during a pandemic. The guidance was initially written in 2009, but officials revised it with the coronavirus in mind at the start of the pandemic.
At the time, the EEOC was careful to note there wasn’t a COVID-19 vaccine readily available.
Potential vaccine candidates
Pfizer and its partner BioNTech announced Nov. 9 they have a vaccine candidate that was more than 90% effective, McClatchy News reported. The drug company said it was submitting a request for Emergency Use Authorization with the U.S. Food and Drug Administration and could produce up to 50 million doses by the end of 2020.
One week later, Moderna announced it has a vaccine candidate that is 94.5% effective against COVID-19.
“It’s just as good as it gets — 94.5% is truly outstanding,” Fauci told CNN.
Neither have received FDA approval. But a recent Gallup poll conducted between Oct. 19 and Nov. 1 found about 58% of Americans would get the vaccine — up from 50% in September.
For those who wouldn’t, experts say companies — particularly those in high-risk fields — could make getting a coronavirus vaccine a condition of employment.
“Employers may implement mandatory vaccination programs, subject to limited exemptions,” attorneys at the labor and employment law firm Ogletree Deakins wrote in a September blog post. “Although the issue is only now coming to the forefront of our national conscience, mandatory vaccinations in the workplace are not new, and are particularly prevalent among health care providers.”
Amy Traub, an attorney with BakerHostetler in New York City, told the Society for Human Resource Management that hospitals and nursing homes in particular have a compelling argument for requiring the COVID-19 vaccine given that their employees interact largely with immunocompromised patients.
Exceptions and limitations
The Americans with Disabilities Act and the Civil Rights Act of 1964 permit employees to seek an exemption to a vaccine requirement, AARP reported.
Dorit Reiss, a law professor at the University of California, Hastings, told AARP those laws protect workers with medical reasons or “sincerely-held religious beliefs” that might prevent them from getting the vaccine. The Civil Rights Act also requires employers to issue a reasonable alternative — such as wearing a mask or allowing employees to work remotely — in lieu of a vaccine.
But a worker who objected to a vaccine requirement “for moral or political reasons would not be protected,” CNN Business reported.
Mandatory vaccine programs also present some liability issues for an employer if their employee has an adverse reaction to the serum, according to CNN Business.
The Wall Street Journal reported companies could “face a gross negligence suit or have to pay out a workers’ compensation claim if an inoculated employee has a severe reaction.”
Enforcement vs. encouragement
Requiring vaccines as a condition of employment is “not without limitations or always recommended,” The National Law Review wrote in a July article.
The article pointed to the flu guidelines from the U.S. Occupational Safety and Health Administration, which says employers can require an influenza vaccine but emphasizes that workers should also be “properly informed of the benefits of vaccinations.”
The highly politicized nature of a potential coronavirus vaccine would seemingly present hurdles for a company issuing a vaccine mandate, L.J. Tan, chief strategy officer for the Immunization Action Coalition, told AARP.
“One of the challenges we’re going to be dealing with, obviously, especially now is that there is a shadow of politics over the vaccine,” he said. “As a result, there’s some fear about whether the vaccine can be safe, whether it can be approved appropriately. Because of that shadow, I think it’s going to be extremely difficult for an employer to make COVID-19 vaccination a condition of employment.”
Attorneys at Ogletree Deakins said the “slew of accommodation requests — medical, religious, personal, and ethical — fueled by mistrust of political leaders and the health care industry” would also come into play.
In an October article, attorneys at Seyfarth Shaw LLP wrote a “voluntary program to start may be prudent, with the option to escalate to a mandate in the future.”
Sahar Aziz, a professor at Rutgers Law School, echoed that idea in an interview with MarketWatch, saying companies likely would “try the path of least resistance” before instituting a vaccine requirement. That could mean beginning with a “voluntary-encouragement route,” only shifting to a mandate if too few people are getting vaccinated.
This story was originally published November 18, 2020 at 6:10 PM with the headline "Two COVID-19 vaccines are on the horizon. Can your employer require you to get one?."
