Employers legally can mandate vaccination
Employers hear legal basis for mandating vaccine but there are other concerns
Business leaders were reminded on Tuesday that it is legal to require a COVID-19 vaccine for employees as the virus spreads across the region.
“The concept of mandatory vaccination has been perceived or interpreted by the federal government as being permitted,” said Kevin Moore, chair of labor and employment practices for The Law Firm of Leisawitz Heller in Spring Township, Berks County.
“It does not violate anyone’s civil rights.”
As hospitals grapple with a renewed surge in infections, local health care officials reminded a group of more than 100 listeners that the best defense against the coronavirus is for every eligible person to receive a vaccine.
But most of the hour-long virtual town hall hosted by the Greater Reading Chamber Alliance was dedicated to vaccine policy in the workplace — specifically, what rules are permissible for companies to enforce under current laws, and what protections may apply to employees who are potentially exempt.
“(Mandatory vaccination) has not been challenged legally successfully at all,” Moore said, noting arguments that some inoculations are not yet FDA approved and still considered experimental is not a valid legal defense.
“There’s been some cases out of Texas and other states where there were challenges to mandatory vaccinations, and the basis was that the emergency use authorization was not a formal approval process and therefore it’s flawed.
“All of those were thrown out. (Emergency) approval has been around a long time.”
The vaccine produced by pharmaceutical company Pfizer has also since been formally approved, he said.
A higher priority?
It was unclear how many of the numerous employers in the virtual meeting are weighing vaccine mandates for workers.
Moore suggested the biggest barrier to such policies is not the law but, rather, the national labor shortage.
“Frankly, a lot of employers have not imposed it mostly because of concerns about employees’ medical issues, privacy issues and the great fear of losing employees,” he said. “That has been, in my practice, the No. 1 concern.
“We are at a very desperate point in our search for qualified employees, and employers are bending over backwards to keep, retain, recruit — they are suspending all sorts of requirements and conditions — and that in part has somewhat slowed the progression of mandatory vaccines in the workplace. And that’s nationwide. That’s not just locally.”
Yet, the resurgence of the virus and its more contagious delta variant poses threats to businesses that may change the calculus behind such a decision.
If the number of people falling ill continues to rise, sick workers may result in production slowdowns, and consumers may choose to stay home rather than go shopping or dine in restaurants.
Dr. Debra Powell, chief of division of infectious diseases at Reading Hospital, said that the delta variant is now responsible for over 98% of cases in the U.S.
“The good news over the summer is, in our hospital, we saw no cases at all on July the 12th,” Powell said. “Since then, we’ve been seeing more cases every week.
“We went from six to 16 to 24 and, as of this morning, we have 41 inpatients and 5 in the ICU.”
What about exemptions?
Despite vaccine mandates being legal, and some employers perhaps believing there’s a growing need, companies are wading into murky waters in some cases.
There are “two-and-a-half major exemptions” to such a requirement for disabilities and religious reasons, Moore said.
The disability exemption is the more self-explanatory of the two, he continued, adding the Americans with Disabilities Act al
ready outlines that employers must attempt to provide reasonable accommodations in such a case.
“Could be increased social distancing, could be a leave of absence, could be a return to remote working or additional use of PPE (personal protective equipment) in the workplace,” Moore said of potential accommodations.
Pregnant women are also protected in the same manner as a person with a disability under the Pregnancy Discrimination Act.
Religious exemptions are much more subjective in nature, Moore conceded, as a person’s beliefs don’t necessarily need to be tied to an established church or organization — though, if an employer has reason to question the sincerity of such claims, those can be disputed.
“We actually have some case law in Pennsylvania having to do with refusal to take a vaccination,” he said. “An employee refused to get the flu vaccine as required by the employer and his position was he was worried about the health effects of the vaccine and didn’t believe the scientifically accepted view that it was harmless.
“The court rejected that under the religious exemption defense and concluded that these were concerns that were medical beliefs, not bona fide religious ones.”
In cases where there’s a valid medical exemption to a vaccine mandate, an employer can still claim undue hardship if providing reasonable accommodations would come at a significant burden or expense — and the bar for undue hardship can be even lower for religious exemptions, Moore said.
Vaccinations touted
Buried beneath the legalese
surrounding COVID-19 vaccines in the business community is the fact that people of all ages are still getting sick as a result of the virus and, in some cases, being hospitalized or dying.
Whether it’s mandatory in the workplace, health officials are imploring all eligible persons to get vaccinated, noting only 59% of Berks County residents have received at least one dose. Across the region, data shows that 67% of Montgomery County residents, 65% of Delaware County residents and 73% of Chester County residents have received at least one dose.
“That protects everyone around you: your family, your community, your friends and your health care workers,” Powell said.
“The unvaccinated are five times more likely to get COVID and 19 times more likely to be hospitalized, so these vaccines are safe, highly effective and they prevent you from getting really sick.”
Dr. Olubunmi Ojikutu, chair of the department of pediatrics for Reading Hospital, also stressed the importance of vaccines to protect children.
“We are encouraging every adult and eligible person in the community to help to build that wall of immunity around our children who are not yet eligible for vaccines,” Ojikutu said.
But as some citizens and even elected officials continue to fight health mandates either through the courts or in the legislature, it would be wise for employers to at least “pretend we’re in 2020” as far as COVID precautions are concerned, Moore warned.
“Think about the workplace conditions and the safety programs that you implemented for COVID and remember that compliance with the governmental guidance is still your best defense to any legal action,” he said.