A long history of compulsory vaccinations in America have made them an accepted part of our culture. Starting with institutions in Massachusetts in the 1850s, most public and private schools have vaccine requirements for students. Today, everyone from toddlers entering daycare to military enlistees must be up to date on their vaccines. But those requirements affect only a small portion of the population. Talk of Covid-19 vaccines becoming employer mandated is reigniting the old debate on personal choice vs. public health.
Currently, two vaccines have been given FDA approval and are already being administered to frontline employees and to those who are most at risk. With three more vaccines in their final trials and employers eager to regain any sense of normalcy, the push to vaccinate as many people as possible is about to take center stage. And even though more than 400,000 Americans have already died due to the pandemic, research shows around one-third of Americans do not want to receive the vaccine.
Can their employers force them to receive a Covid-19 vaccination anyway?
Specific circumstances should be considered when deciding if employees should be required to obtain the vaccination. While it may be reasonable to require that staff in vulnerable and high-risk groups, such as those in the healthcare sector, get the vaccine, it is important to outline the differences in circumstances of those working in professional services or office environments. If an employer can project that the required vaccinations are the most reasonable and practical way of mitigating the risk of COVID-19 exposure and spreading the virus, then their risk assessment may lead them to mandating the vaccination as a health and safety requirement. This could reasonably be validated by the Health and Safety at Work Act 1974, which says that employers have an obligation to protect the health, safety, and welfare of their employees. Under this act, employees are also obligated to cooperate with their employers to ensure that the that they have reasonable ability to implement health and safety protocols.
Is It Legal?
Yes, it is legal. In 2009, the combined effect of the seasonal flu and swine flu pandemic caused the Equal Employment Opportunity Commission (EEOC) to release new guidelines on vaccines. In the interest of public health, the EEOC announced that employers could require their workforce to get vaccinated. However, there are a few exceptions. Two common exemptions are made possible by federal laws.
Exemptions and Other Factors
It must be noted that it is not clear whether an employee’s refusal to get a vaccine constitutes a health and safety breach. Additionally, if an employer does not make a vaccine a mandatory condition, this also does not constitute a breach. It is important to outline these exemptions when considering making the COVID-19 vaccine mandatory or engaging with an employee who chooses against getting the vaccination. Additionally, there are other exemptions to note:
Americans with Disabilities
Under the Americans with Disabilities Act, as long as reasonable accommodations are possible, an employer must provide reasonable accommodations for workers with medical conditions that prevent them from being safely vaccinated.
Title VII of the Civil Rights Act of 1964 allows employees the option to refuse vaccination due to sincerely held religious beliefs, as long as remaining unvaccinated does not impose undue hardship on the employer.
Both of those exemptions give wiggle room for certain employers to require it, and leaders in various industries are making their intentions known.
Consider the following health professional and corporate responses;
- United Airlines CEO Scott Kirby said he wants to make the Covid-19 vaccine mandatory for the company’s more than 60,000 employees.
- When asked about the possibility of requiring a Covid-19 “vaccine passport” for travel or schools, top American infectious disease expert Dr. Anthony Fauci said, “everything will be on the table for discussion.”
- Dollar General is taking a different approach and offering to pay four (4) hours of regular pay to employees who get vaccinated.
The vaccine debate is only going to get hotter as doses become readily available and companies bring their employees back to the office. Employer policy options include mandating or encouraging vaccination or even making no change to your current policies.
While many businesses are evaluating the policy actions they will initiate, a good course of action for all business owners would be to consult with health and legal experts regarding the implications and potential issues of mandating a vaccine.
Your InPrime Legal Team
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Disclaimer: This blog should not be used as a substitute for competent legal advice from one of our licensed attorneys.