Encouragement, not force, on vaccine likely by employers
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?
The U.S. Food and Drug Administration approved the PfizerBioNTech COVID-19 vaccine for distribution under an emergency use authorization.
The federal government has ordered 100 million doses of the vaccine, which still is undergoing clinical trials.
So far, Pfizer estimates that 50 million doses will be manufactured by the end of the year. The first batches likely will 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 Operation Warp Speed, a federal partnership program 9aimed 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, reports indicate.
Once a vaccine becomes widely available, can my workplace force me 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 even may 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 Texas employment law firm Muskat, Mahony & Devine.
Muskat said 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 coronavirus, it could count as a medi
cal 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, also might 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 merely will 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 very well may 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, the CDC says.
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 a medical issue that prevents me 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 ever would 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 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.