Can vaccine be required for work?
With news that a COVID-19 vaccine might be hitting the mass market in the coming months, people are beginning to wonder if they’ll be required to get immunized before making a full return to the office.
Here’s what experts say can and can’t be mandated when it comes to the COVID-19 vaccine and the workplace.
Where does the U.S. stand with the vaccine?
On Friday, the Food and Drug Administration approved the Pfizer-BioNTech COVID-19 vaccine for distribution under an emergency use authorization, paving the way for medical workers to begin getting shots within days. The federal government has ordered 100 million
doses of the vaccine, which is still undergoing clinical trials.
So far, Pfizer estimates that 50 million doses will be manufactured by the end of the year. The first batches will likely go to health care workers, other essential employees, people 65 and over and people at highest risk for severe illness or death from COVID-19.
Yes, vaccines usually take a long time to develop — about 10 years, if you ask the epidemiologists who develop them. Scientists are developing COVID-19 vaccines more quickly because of OperationWarp Speed, a federal partnership aimed at developing 300 million doses that dangles a $1.95 billion paycheck in front of companies who can deliver the first 100 million doses.
Private insurers and Medicare will be responsible for covering the full cost of the vaccine, the Chronicle’s Julia Garcia reports.
Once a vaccine becomes widely available, can my workplace forceme to get it?
“Force” is a strong word, right? But legal experts say there are no laws prohibiting companies from requiring their workers to be vaccinated. There may even be some precedent; universities, for example, may ask students to provide proof of certain vaccinations before enrolling in classes.
“That’s the $64,000 question,” said Mike Muskat, a partner at the Houston employment law firm Muskat, Mahony & Devine.
Muskat said that employers may look to the Americans with Disabilities Act for guidance on whether they can require a COVID-19 vaccine for work. If they ask for an immunization record confirming the worker has been vaccinated against the new coronavirus, it could count as a medical examination — legally permissible if the employer can prove it’s a business necessity.
The Equal Employment Opportunity Commission, which enforces civil rights laws in the workplace, might also provide some insight into what can and can’t be required. The federal agency said as recently as September that a workplace may administer COVID-19 test and screenings as long as it’s consistent with Centers for Disease Control and Prevention guidance.
It’s more likely, Muskat said, that employers will merely encourage people to check out the background of the vaccine and consider getting shots. Ensuring 100 percent compliance with a workplace rule might be impossible.
Regulatory bodies like the Occupational Safety and Health Administration haven’t put out any regulations for vaccine compliance yet, said Dr. David Levy, CEO of EHE Health, a national primary care organization.
“Some employers might feel that there’s liability if you push too hard,” Levy said.
Could a prospective employer require it in a job application?
It’s possible, said Richard Carlson, an employment law professor at South Texas College of
Law.
“You’ll start seeing employers provide advanced warning upfront as part of the job description,” Carlson said.
While a workplace can’t discriminate while hiring on basis of whether the applicant has received the COVID-19 vaccine, it might signal to workers that if they want to get a job, it’d be a good idea to have immunization.
Some industries, such as health care, are more likely to require vaccination.
“When it comes to getting a vaccination to safely perform a job, such as working in retail when dealing with customers, it’s likely to be essential to perform that job safely without endangering other people,” Carlson said.
Will I have to get vaccinated to travel for work?
Other countries may very well put in travel laws requiring visitors from foreign countries to show proof of a COVID-19 vaccine. For instance, people traveling to Nigeria must provide yellow fever immunization records to enter the country, according to the CDC.
Dozens of countries have closed their borders to U.S. travelers during the pandemic, and many others require proof of a negative COVID-19 test before entry.
“I can easily imagine them saying, ‘Yeah, we’re going to open the borders, but you have to show proof of immunization,’ ” Levy said.
What if I have a religious exemption or amedical issue that preventsme from getting the vaccine?
There are auto-immune diseases may prevent people from receiving the COVID-19 vaccine. Some people also cite religious exemptions in not getting vaccines.
“The employer’s duty to accommodate religious practices is minimal if the accommodation puts more than a de minimis burden on employer, meaning uses much cost or inconvenience to employer,” Carlson said.
But even religious exemptions aren’t always going to stand up in court. During the measles outbreaks in 2014 and 2015, California and New York legislators rescinded vaccine exemptions for nonmedical reasons in an effort to lower transmission rates. (It’s TBD whether Texas would ever be one of those states.)
No state laws currently exist around COVID-19 immunizations, probably because the vaccine isn’t out for mass consumption yet. The jury’s still out on whether Texas will maintain its existing exemption laws, which allow both medical exemptions
But experts say that federal civil rights laws won’t protect political beliefs or skepticism about the safety of the vaccine as legitimate excuses not to get it.
“There will be a good argument that vaccines are reliable, helpful and consistent with business necessity such that employers will be able to require them with certain exceptions,” Muskat said.