Some health officials say a COVID-19 vaccine could become widely available in the next six months, and that leaves a lot of questions for workers and employers.
Chief among them: Could your employer require you to get vaccinated?
The Equal Employment Opportunity Commission (EEOC), a federal agency charged with enforcing anti-discrimination laws, hasn’t issued guidance to employers specific to a future COVID-19 vaccine yet. But based on the position the agency has taken on past vaccines, some labor and employment attorneys and bioethicists said the answer could be yes, with some exceptions.
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“The EEOC has said, in general terms, that an employer is allowed to require its employees to get vaccinated with the flu vaccine, for instance,” said Erik Eisenmann, a partner at the Milwaukee office of the law firm Husch Blackwell and head of the firm’s labor and employment practice.
The EEOC’s guidance doesn’t carry the force of law, but law firms often advise employers to follow the agency’s guidance as a rule of thumb to avoid litigation, according to Eisenmann.
Who Can, Can’t Opt Out
For employees who are required by their workplace to get vaccinated, there are exceptions allowed in certain instances. Employees who have a legitimate medical issue under the Americans with Disabilities Act and for whom a vaccine could pose health and safety risks would likely be allowed to opt out of a mandate, in addition to employees who have a bona fide religious objection to receiving the vaccine. Alta Charo, a professor of law and bioethics at the University of Wisconsin-Madison, also added that, in some instances, union contracts bar employers from requiring vaccination.
Eisenmann estimates the number of employees with these objections is likely relatively small, but notes that the larger groups of individuals are those who have moral or ethical objections to vaccines or those who are unsure about the safety of the new COVID-19 vaccine in particular. Individuals who fall into those groups, he said, don’t have sufficient grounds to opt out of a vaccination program if their employer requires it.
According to a Marquette University Law School Poll released in early September, 64 percent of registered voters in Wisconsin said they’d either definitely or probably get a coronavirus vaccine. About one-third said they probably or definitely would not get the vaccine, and another 2 percent said they didn’t know.
The U.S. Centers for Disease Control and Prevention, which isn’t directly involved in developing a COVID-19 vaccine, said the stringent U.S. vaccine safety system “ensures that all vaccines are as safe as possible.”
Employees who choose not to comply with a mandatory vaccination program could be terminated or put on unpaid leave until they opted to comply, Eisenmann said, referring again to past guidance from the EEOC on vaccines that currently exist.
He said the best way for both employees and employers to avoid those situations is to look for possible accommodations if workers are uncomfortable with getting a vaccine. Employers could allow those employees to follow strict mask and social distancing policies, or, if their job allows it, let them work remotely until an employee was comfortable getting vaccinated.
Charo agreed that there could be ways to accommodate employees who can’t get vaccinated or who choose not to, saying “employers have the option of asking employees to move to a different part of the workplace, perhaps one where they have less contact with vulnerable people.”
Charo added that, in some circumstances, an employer could ask for proof of vaccination.
“There are limits on the degree to which an employer can invade your medical privacy, but when it is a legitimate employment condition, then it is possible to demand some kind of evidence of compliance,” she said.
The Likelihood Of A Vaccine Requirement
It remains to be seen whether employers will choose to mandate that employees get vaccinated. Many employers, for example, simply encourage workers to get the flu shot annually.
“My guess is that … a majority of employers are going to … take a more flexible approach and say, ‘We recommend our employees get the vaccine,’ rather than actually requiring it,” Eisenmann said.
But there could be situations where employers take a more aggressive approach. He said he could imagine a scenario where businesses that interact directly with the public often, like restaurants or health care settings, could require all of their staff to get vaccinated in an effort to show customers that the business is being safe. He noted that could have a negative impact on the business though, potentially driving away employees to other workplaces with more flexible approaches.
Charo added that, because of the seriousness of the pandemic, we may end up seeing more employers mandating that their employees get vaccinated.
“COVID-19 has a much higher rate of serious illness and death as compared to things like flu, so the argument would be stronger,” Charo said.
She also said that there are still many unknowns about a future vaccine, like how much immunity it would provide and for how long, in addition to how much the vaccine will prevent someone from spreading the virus to others, all of which could influence an employer’s decision.
EEOC guidance on what employers can require of employees with respect to a future COVID-19 vaccine likely won’t come out until a few months after a vaccine is approved, Eisenmann said.
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