Inoculations might be required to stay employed

Most firms say vaccinations won't be ordered, preferring voluntary consent

Yes, your boss can require that you get a COVID-19 vaccination.

Will they? That’s a more complicated answer, influenced by who you are, what you do, where you work, and how badly you’re needed. And there are exceptions.

It’s still early, of course, with not enough doses for most working Californians. But as vaccine distribution expands, companies are racing to design the policies needed to open, get back to business and prevent fatal, on-the-job contagion while not losing valuable employees who refuse to get a shot.

“By and large, everybody is trying to do the best they can to keep places safe and operating effectively,” Bay Area labor lawyer Bill Sokol said. “This means trying to be as creative as possible while making sure that the work gets done.” The Occupational Safety and Health Administration requires that employers provide a safe workplace. Private businesses have the right to fire anyone as long as they don’t discriminate based on race, gender, age and other protected categories.

And while there is currently no law or regulation that directly addresses mandatory COVID-19 vaccines, there is legal precedent. In December, the U.S. Equal Employment Opportunity Commission issued guidelines that said employers can require workers to get a COVID-19 vaccine before physically returning to the workplace, although workers can request medical or religious exemptions.

In response, employers are quickly enacting a broad spectrum of policies, which vary based on risk.

Vaccines are most often mandatory for those working in child and elder care, where infecting a client or colleague can have tragic consequences.

They’re generally not required by businesses whose workers can socially distance, wear masks or work remotely, such as Facebook, Google, and other tech companies.

But in that vast in-between — where many of us spend our 9-to-5 days — most employers are taking a compromise position. While not mandating a jab, they are encouraging vaccinations through a carrotand-stick approach that combines education, recommendations, incentives, and restrictions.

For instance, the University of California’s medical centers keep a list of workers who are unvaccinated. These workers also must submit a “Vaccine Declination Statement,” wear personal protective equipment, and may be reassigned.

There’s precedent: Vaccines for other infectious diseases are required to protect public health. Many health care companies require flu vaccines. Schools require vaccines against measles, mumps and rubella. Tuberculosis tests are typically required for jobs in health care, education and social services.

But critics note one major difference: The COVID-19 vaccine is not yet approved by the U.S. Food and Drug Administration; it is only “authorized,” pending further study. Critics assert that they’ll hold employers legally responsible for any adverse reactions.

Attorneys offer two rebuttals. That regulatory distinction likely won’t matter to the courts, they say. And any reaction, if linked to the vaccine, would simply trigger a workers’ compensation claim.

This doesn’t mean your employer has carte blanche to fire you. If you claim a medical or religious exemption, they first have to show that you pose a direct threat to the worksite. Then they must consider whether a reasonable accommodation — such as working remotely — is possible.

Those accommodations come easy in some jobs; in others, they’re impossible. In Hollywood, for example, “if your specific duty is to act in a crowd scene in a movie, there’s no way to accommodate you,” Sokol said. “On the other hand, if your job is to be a film editor, you can sit at home.” This week, a major survey by Littler, the world’s largest employment and labor law practice representing management, found that most employers are unlikely to mandate COVID-19 vaccination.

Nearly half, or 48%, of those surveyed have already decided against the requirement; 43% said they were still considering it and about 7% are either requiring it or plan to, once vaccines are readily available or are fully approved. Of reluctant companies, 67% said they worried about a mandate’s impact on employee morale, company culture and staffing. Most hoped to simply encourage vaccination while also offering remote work and maintaining safety protocols.

“Most employers depend on their workers,” Sokol said.

Consider an auto dealership, he said. If it loses an unvaccinated mechanic, “suddenly they have an open bay and can’t keep up with the business.” Surprisingly, members of the military aren’t required to get vaccinated, although that could change once the FDA issues formal licensure.

Could an employer be sued if one of their unvaccinated workers infects a client, customer or colleague? While possible, it’s hard to imagine, Sokol said. To be successful, a plaintiff would need to prove that they were sickened by one specific person in our virusfilled world. That’s a tall order.

While at least 10 states have proposed bills prohibiting private employers from mandating that their workers be vaccinated, such efforts are ill-conceived and unwise, bioethicist Art Caplan of the NYU School of Medicine said.

“Workers have a right to a safe workplace,” he said. “Customers may also want a safe environment and may prefer businesses that offer it.” Anxious about their patients’ health, the eldercare companies Atria Senior Living and Aegis Living are requiring worker vaccines as soon as they are widely available. They make exceptions for workers who are pregnant or have other compelling reasons to decline.

“Taking the vaccine, in our view, is the highest act of helping our fellow human beings,” said John Moore, CEO of Atria Senior Living, which is requiring that all employees of its 43 California facilities take both doses of the vaccine by May 1.

Home care agencies such as Home Health Bay Area, which sends caregivers to the bedside, say they are now weighing the risks and benefits of such a policy.