GET VACCINATED - OR ELSE?

First published in Go Banking Rates - Nicole Spector

 

Under the Americans with Disabilities Act, employers can require workers to take medical tests that are “job-related and consistent with business necessity” — and that includes tests for COVID-19. The logic here is simple — COVID-19 is wildly contagious. Additionally, you can spread it like wildfire without having so much as a single symptom. That’s a big reason when we’re still trapped in the trenches of this pandemic. The virus passes through some people with less impact than the common cold, while others end up terribly sick at home, land in the ICU or end up dead.

 

Now that we have safe and effective COVID-19 vaccines being distributed, can employers require their workers to get a vaccine? It does depend on the situation, to an extent — but in short, the answer is yes.

 

The short answer is yes.

 

“It is possible and legal for employers to mandate vaccination against COVID-19 once there is an FDA-approved vaccine,” said Jessica Ochs, a board-certified nurse practitioner and associate professor of nursing at Endicott College in Beverly, Mass. “The U.S. Equal Employment Opportunity Commission has confirmed that employers may require COVID-19 vaccination as long as the policy for vaccination complies with the ADA, Title VII of the Civil Rights Act of 1964 and other workplace laws.”

 

“With these restrictions, some employees may opt out of vaccination due to religious or philosophical beliefs,” said Ochs. “But given the public health implications, if reasonable, alternate accommodations cannot be made for that employee, it is possible that they may not be able to return to work.”

 

An example: Let’s say you work as a janitor at a hospital, and you refuse to take the vaccine. How can your employer ensure that you won’t pose a health risk without it? The nature of your job rules out working 100% remote, so that’s off the table. What, then, can your employer do for you? This is where things get sticky:

 

If you won’t get the vaccine, and there’s no other way for you to not be a COVID-19 risk to your peers and/or clientele, what reasonable accommodation can your employer make available to you?

 

Images of John Travolta in “The Boy in the Plastic Bubble” come to mind — but walking around in an airtight enclosure doesn’t seem like a feasible long-term solution. 

 

Though these are compelling and important “what-ifs,” we’re not yet at a stage in the vaccine distribution where an employer can reasonably issue an ultimatum because there’s still not enough vaccines to go around to everyone. 

 

“At this point, while it may be legal for employers to require the COVID-19 vaccine, it would not be prudent, and I would argue unethical,” said Dr. Lara Salahi, author of Outbreak Culture: The Ebola Crisis and the Next Epidemic. “Since there is such limited supply and lags in distribution — with states developing their own distribution timelines and phased approaches — it would not be possible for anyone who wants the vaccine at this point to receive it.”

 

If it’s not yet possible for everyone who wants the vaccine to receive it, it’s also reasonable to conclude that someone who doesn’t want the vaccine won’t be cornered into getting it. In fact, there have been a significant number of first responders who have declined the vaccine and not experienced any occupational fallout as far as we know.

 

 “Those who are in the first phases of receiving the vaccine, such as health care workers, older adults in congregate care settings and first responders, have the option to receive the vaccine,” said Salahi. “Some have opted out, and it has not impacted their employment or residential capacity.”

 

Once COVID-19 vaccines are readily available to everyone, employers will have a strong ethical case for making inoculation mandatory.

 

“Ethics generally refers to foundational standards of right and wrong that specify what people ought to do in the interest of society,” said Ochs. “Given this, widespread vaccination is entirely ethical as it works on the principle of protecting the public from a potentially preventable, deadly disease. From a population health standpoint, mandatory vaccination is the best way to protect the health and safety of the entire society, including vulnerable and high-risk groups of individuals.”

 

Employers may also face additional liability for not requiring vaccination, Ochs pointed out, as some employees may accuse the employer of failing to provide a safe work environment as required by the Occupational Safety and Health Act. But again, we’re not there yet and probably won’t be until the summer of 2021, when we are expected to have enough of COVID-19 vaccines available to inoculate all 330 million people in the U.S.

 

At ASN, we are following these issues very carefully and are ready to offer any advice we can. Please give us a call with any questions.