Vaccine could be condition of work
Experts see shot being required for employment
The COVID-19 vaccine rollout can’t come fast enough for most people, but there will be some who will want to wait for more information, or stridently oppose it. One of the first questions is often: “Can my employer require me to get vaccinated?”
Erik Eisenmann, chairman of the labor and employment law group at Husch Blackwell, said the basic answer is yes.
“I think the only industry we can anticipate will require it right away is health care,” Eisenmann said. “I would be surprised to see others mandating it, at least early. They more likely will try to incentivize, and encourage, getting the vaccine.”
Employers already have some legal cover. On Dec. 16, the Equal Employment Opportunity Commission said simply requiring a worker to get a COVID-19 vaccination would not violate the Americans with Disabilities Act, which bans employers from doing some types of medical examinations.
“If a vaccine is administered to an employee by an employer for protection against contracting COVID-19, the employer is not seeking information about an individual’s impairments or current health status and, therefore, it is not a medical examination,” the EEOC says.
Eisenmann said there will be exceptions for some workers facing mandatory vaccines.
One is if a specific medical condition would make getting the vaccine particularly dangerous for that person.
The other, he said, is a bonafide religious objection,”an exception that is potentially open to wider interpretation — and abuse — than a recorded medical condition.”
“It can’t just be that you have ethical differences, or you think the vaccine was rushed,” Eisenmann said. Christian Scientists, for example, often eschew some forms of modern medicine in favor of prayer, but as the church’s website explains, it also counsels “conscientious obedience” to the law, including getting required vaccines.
But a religious objector need not belong to any specific faith or church. In 2018, the EEOC sued Ozaukee County after a certified nursing assistant at its Cedarburg nursing home, Lasata Care Center, was told she had to get a flu shot or quit in 2016.
Because Barnell Williams didn’t belong to any organized religion or church, she could not produce a letter from a clergy leader stating that vaccines were contrary to her faith.
As part of a settlement, Lasata Care Center dropped that requirement for religious exemptions.
“It’s a two-part test,” said Ronald Stadler, a lawyer who represented Ozaukee County in the case. “The standard is whether it’s a sincerely held religious belief. It’s a pretty flexible standard but goes back to if it’s sincerely held.”
The second part, Stadler said, is whether an employer can reasonably accommodate that belief.
“For the flu, in 2016, that was ‘wear a mask.’ But I think we’ve learned a lot more about masks in the past nine months,” he said. “They’re not a be allend all” when it comes to COVID-19.
Accommodations will be very jobspecific, Stadler said, noting it is probably much easier for an unvaccinated truck driver to do her job safely than anyone employed in a nursing home.
Eisenmann agreed, adding that just because the vaccine is becoming available doesn’t mean employers and businesses will be dropping other safeguards.
“There’ll be lots of meeting in the middle” over the next year, he predicted.
Another question is how someone proves they have been vaccinated.
Eisenmann said there’s been discussion of having the federal government issue a card, but some see ethical issues with that. “Are we creating two classes of citizens? Will those without the card get left out of the recovery or ostracized?”
In practice, he thinks many small employers will simply take their workers’ word that they’ve gotten the vaccine. But if they lie, and the business winds up exposing others and the public and they get sick, Eisenmann thinks such business could face liability.
Meanwhile, others are developing apps, called vaccine passports, initially aimed at international travelers. One, called CommonPass, links data from more than 200 U.S. health systems to users’ cellphones. CommonPass is being developed by a nonprofit public trust.
Vaccine injury compensation
What if you get the vaccine on your own, or because your employer requires it, and then you get sick? The federal government may cover that.
Questions about the COVID-19 vaccine have brought wider attention to the Vaccine Injury Compensation Program, sometimes called Vaccine Court, which is run through the Court of Federal Claims in Washington, D.C. The program pays attorneys fees, as well as the payments to help the victims.
It was set up to cover the very rare cases of people developing life-altering reactions to common vaccines like those for measles, seasonal flu, tetanus, hepatitis A, HPV and others.
Anne Toale, a partner at one the leading law firms specializing in vaccine injuries, noted that the entire vaccine bar has been lobbying to get the COVID-19 vaccine added to those covered by the VICP.
“The reason there is this program is that there is no negligence” to be determined. “It’s just a super rare outcome” to various vaccines that overall benefit public health.
For now, though, the COVID-19 vaccines are part of the Countermeasures Injury Compensation Program, which, Toale explained, may sound similar but differs significantly.
According to the program’s website, a countermeasure is a vaccination, other medication or even a device “recommended to diagnose, prevent or treat a declared pandemic, epidemic or security threat.”
The CICP is a purely administrative process within the Department of Health and Human Services. Toale said claims are made via an online form and must be filed within a year of getting the vaccine. Many people, she said, don’t even get symptoms by then and might take even longer to figure out it might be from a countermeasure.
There is no appeal available. The CICP doesn’t publish its decisions as guidance for future claimants. The program doesn’t cover attorney fees.
“The process of adding (COVID-19 vaccines to the VICP) needs to get rolling,” Toale said.
She said she hopes the addition will go faster under the Biden administration, otherwise it could take a year through rule-making procedures.