Can employers require vaccinations? Should they?
With the crazy year that 2020 has been, we are finally graced with some incredible news in the form of multiple effective vaccines to curb the spread of the COVID-19 virus. This arduous battle has been fraught with monumental global death tolls, widespread unemployment, inauspicious work environments, and a life of perpetual fear and anxiety over what is to come next. Thankfully, with the results of late stage clinical trials from multiple drug makers, people are finally beginning to reimagine what their lives had looked like a short year ago - and what that will mean for the working world.
With people eager to regain a sense of balance in their lives, many employers and employees are enthused by the prospects of returning to the office. Although some companies, most notably Twitter, has led the charge in allowing its employees to continue working from home indefinitely. That is definitely not commonplace across industries, as many have struggled with the adaptive work environments that were forced due to the pandemic lockdowns and work from home culture.
This all sounds like great news: huge vaccine breakthroughs, companies adapting to the technology age, and the overall quelling of fear for when this pandemic may come to an end. With that being said, there are still some major hurdles that we are to face in the coming months with the distribution of an effective vaccine.
Most notably, for employers who are thrilled to return to normal, in-office procedures, how can they ensure that their employees will have access, can afford, or will take the vaccine?
The main challenges pose a complex - and legally ambiguous – answer to the aforementioned issues. According to Jonathan Segal, a partner at Duane Morris who specializes in employment law, the legal bar for mandatory vaccinations requires showing a "strong business necessity." And given the nature of the pandemic, companies should be able to clear that bar.
"There's a very strong case that preventing a deadly disaster is a business necessity, especially now that we have a quarter million people dead," Segal says. Protecting the livelihoods of one’s employees – and themselves – is of the utmost importance during these times, so requiring that all staff members receive the vaccination should be a requisite step in returning to the workplace.
Unfortunately, it is not that simple.
If this is a mandate from an employer, will the company be required to foot the bill for the vaccination? In legal terms, the company is not obligated to pay for the cost of a mandatory shot. Nonetheless, if a company does announce they will subsidize the vaccination costs, it will effectively ensure compliance, as well as serve as an ethical gesture to show the company’s concern for its people.
Even if the company does opt to absorb the costs to have its people vaccinated, can it– legally and ethically – force its employees to get vaccinated?
The issue of mandatory vaccines is contentious, as it strikes the nerves of political overreach of personal liberties vs. public health. The U.S. Occupational Safety and Health Administration (OSHA) has taken the position that employers can, “require employees to take influenza vaccines… but emphasizes that employees need to be properly informed of the benefits of vaccinations.” OSHA also explains that “an employee who refuses vaccination because of a reasonable belief that he or she has a medical condition that creates a real danger of serious illness or death (such as a serious reaction to the vaccine) may be protected under Section 11(c) of the Occupational Safety and Health Act of 1970.
In March, the Equal Employment Opportunity Commission (EEOC) outlined in its guidance that employers may ask workers about potential COVID-19 symptoms and take their temperatures, if certain rules are followed. However, obliging to having one’s temperature checked, wearing masks in the shared space, and keeping a safe physical distance differs mightily than requiring employees to vaccinate themselves.
Some individuals may demand exemption for medical grounds. Perhaps, they have experienced adverse reactions in the past to certain shots. Others may object to this based on personal beliefs on the efficacy or safety of the vaccine, while some may point to religious convictions as their reason for opposition.
In a recent case in a Massachusetts hospital, the hospital’s influenza policy offered employees two options: get a flu vaccine or wear a hospital-provided mask at all times for the duration of the flu season. The employee asserted that her religious belief against defiling her body meant she could not get a flu shot, as the consequences for doing so would be that “God will destroy [her]” and that she will “go to hell.” Therefore, she affirmatively declined to be vaccinated. The hospital then terminated her based on the grounds that she violated the mask-wearing rule. The court held the validity of the firing on the basis that wearing a mask did not encroach on her rights as a devout Christian.
In another employer vaccination case, Jacobson v Massachusetts, a man challenged an edict by city officials in Cambridge, MA to get a vaccine for smallpox or receive a $5 fine. The man declined to get vaccinated, claiming that he and his son had an adverse reaction to earlier vaccines. In a 7-2 decision, the court sided with the city. While the Jacobson case involved government mandates, not the requirement by a private company, many of the ethical issues—involving the safety of the general population versus the rights of the individual— may mirror upcoming issues facing employers.
Can employers require COVID vaccinations? In many cases, the answer will likely be yes. Should employers require vaccinations? That question leads to many, complex answers. Issues surrounding patient autonomy and consent remain at the forefront of vaccination discourse. This will inevitably complicate attempts by companies and other institutions to require employees to be vaccinated. Businesses are likely to face challenges whatever they do—or don't do. Employees may challenge employers and we may even see lawsuits being filed against non-vaccinated employees by their co-workers on the grounds that they are endangering the rest of the workplace.
By Noah Gassman