Going back to the office
Can bosses insist you get a COVID vaccine? Yes, but with a few caveats
Can bosses require you to get a COVID-19 vaccine? Legally, yes, they can.
But in reality, it depends on policies at your workplace.
More companies are requiring the vaccine, especially in health care and the public sector. But policies vary widely at the moment and many employers are reluctant to change.
It’s legal for companies to mandate vaccines, with three caveats, said Amy Traub, chair of the BakerHostetler law firm’s labor and employment practice.
The first is a medical exemption, say, an allergy or contraindication to components of the vaccine; second, religious beliefs or observances; and third, city or state law regarding pregnancy or other related medical conditions.
“A pregnant woman could request an exemption in cities that recognize the condition as one accommodated by an employer,” Ms. Traub said. But just this week, the American College of Obstetrics and Gynecology recommended vaccines for pregnant women.
“It’s hard for employers right now. On one hand, governments locally and federally are mandating vaccinations for different types of workers. There’s a wave to ride, and many of our business clients are now mandating it, too,” Ms. Traub said.
Cleaning products company Scrub Daddy mandated that every one of its nearly 100 workers be back in office and fully vaccinated by June 1.
“I felt strongly it was within my rights to request this about two months before the major corporations joined in the same mandate,” said CEO Aaron Krause, whose firm is based in Pennsauken. “Everyone is vaccinated and it’s great to see everyone back in the office knowing we are in a protective bubble.”
Claudia Timbo, founder of call center CompanyVoice in Blue Bell, takes a hybrid approach.
“We are not requiring employees returning to work to be vaccinated,” Ms. Timbo said.
“However, if they’re not, we require them to wear masks in public areas, similar to restaurants and stores. It’s very difficult to get qualified workers, due to high unemployment” benefits, she said. “To fulfill our agreements [with clients], we had to go in this direction.”
Nationally, 16% of companies are now mandating COVID-19 vaccines for current employees,
up from 15% in February; 14% of employers mandate vaccines for new hires only, according to a July survey by the Blank Rome law firm.
“Bosses have to adapt on the ground right now,” given surging delta variant infections, said Susan Bickley, partner at Blank Rome’s labor and employment practice in Houston.
While 56% of employers ask only whether workers are vaccinated, 30% of employers require proof. Among those wanting proof, nearly half said they want a copy of a vaccination card, the survey found.
Uber, Google and Facebook are requiring inoculations for employees at corporate worksites; industrial stalwarts GE and Boeing aren’t. Amazon has said it wouldn’t require workers to get vaccinated. Walmart, the nation’s largest private employer, is requiring vaccinations for corporate employees but stopped short of mandating vaccinations for hourly workers at stores.
Meat plants were a big center for infections last year. On Tuesday, Tyson Foods Inc., the biggest U.S. meat company, announced it is requiring team members at U.S. office locations to be fully vaccinated by November.
Health care and government workers
On Monday, New Jersey Gov. Phil Murphy mandated that health care workers or staff in congregate living facilities get vaccinated or undergo weekly testing effective Sept. 7.
That follows the announcement by the Centers for Disease Control and Prevention that even vaccinated people infected with the delta variant of COVID-19 can spread the virus. The elderly and those with compromised immune systems are most at risk.
Seventy percent of state and local government workers nationwide are fully vaccinated, and 6% more are partially vaccinated, according to a paper by MissionSquare Research Institute, formerly the Center for State and Local Government Excellence.
More than half of government workers (59%) believe the vaccine will be effective, but only if everyone receives it; the number of municipal employees working in person has more than doubled from 26% in May 2020 to 58% in May 2021.
At Thomas Jefferson University, medical students are required to be vaccinated, but not faculty — at least not yet.
The Jefferson health system, the university’s parent, is taking a more aggressive approach. “We intend to make vaccines mandatory for all Jefferson employees,” said a spokesman for the hospital system, Brian Hickey, although timing is undetermined. Jefferson Health’s mandate would affect 35,000 employees at 14 facilities.
The U.S. Department of Veterans Affairs last month announced that its 115,000 front-line medical workers have eight weeks to get the shots or risk losing their jobs.
Legal support for mandates
There is legal precedent for mandated vaccines at the state level. A U. S. Supreme Court case from 1905, Jacobson v Massachusetts, confirmed a state’s right to enact “reasonable regulations to protect public health and safety.”
Academics cite social and liability concerns. Ethicist Arthur Caplan recently suggested that fines and other financial penalties should be levied on the unvaccinated.
“Want to reject expert opinion and the established facts about COVID and put yourself and others at risk?” he and Dorit R. Reiss, of the University of California’s Hastings College of the Law, wrote in Barrons Magazine. “Then you should pay, if your choice harms others.”
Employers should treat unvaccinated workers like drunken drivers, according to Marci A. Hamilton, the Fels Institute of Government Professor of Practice at the University of Pennsylvania.
“We don’t permit persons to recklessly endanger others by driving drunk. Why? Because driving drunk can kill others,” she wrote in a recent opinion piece.
Not every drunken driver kills someone, and “not every unvaccinated person will infect others, but in both cases, the risk is too high for society to permit the conduct. If a drunk driver kills someone, they can be prosecuted and sued by those who lost a loved one. Why not treat the unvaccinated the same, because they are imposing an unjustifiable risk on others?”
Mandating vaccines doesn’t mean a one-sizefits-all approach, according to Ms. Bickley of Blank Rome.
There’s less of a business case to require remote workers to get vaccinated, she said. But if you’re working onsite, the company has every reason to mandate a vaccine.