As the vaccine for COVID-19 is now in circulation, and the debate are underway about who will get the vaccine and when, an interesting side conversation is springing up among workers: can their workplaces compel them to get a vaccine even if they don’t want one?
The simple answer to that question, according to AP reports is yes, albeit with some exceptions. Though a mandatory vaccine does not necessarily mean an employee can be fired for refusing it, in many cases it means that employee will either have to sign a waiver or agree to work under modified conditions to limit the risk they present to themselves and the general public.
Robin Samuel, an attorney with Baker McKenzie in Los Angeles, told SHRM that employers do have broad authority to keep unvaccinated employees out of the work space.
“Employers may require vaccines before employees return to the worksite if the failure to be vaccinated constitutes a direct threat to other employees in the workplace because the virus is rampant and easily transmitted in the workplace,” Samuel said.
Moreover, UCLA Law professor Dorit Reiss noted, employers are generally given fairly wide latitude when it comes to making health and safety rules for their workspaces. The U.S. Equal Employment Opportunity Commission already allows firms to mandate flu and other vaccines and has indicated it will allow businesses to require COVID-19 vaccines.
There are exceptions to that power. Employees with religious reasons for avoiding vaccines cannot be compelled to receive one, as specified by Title VII of the Civil Rights Act of 1964. Employees with medical reasons for avoiding a vaccine are also exempt — protected by the Americans with Disabilities Act that requires employers to make reasonable accommodations for employees with disabilities that prevent them from receiving a vaccine.
In addition, experts also agree that employers with unionized employees will likely need to address collective bargaining obligations before rolling out any new vaccination policies.
Whether employers will make vaccination a requirement for return to work, however, is still an open question. Some industries, namely healthcare, travel, retail and any industry where face-to-face close contact is common or necessary, have a strong business reason to be pro-vaccine to the point of requiring it. But businesses that plan to rely on remote working for the foreseeable future, notably have the ability to be a bit more relaxed in their requirements.
Should Employers Leverage Their Power To Push Vaccines?
Though employers have some reason to hold back on requiring their workers to get vaccinated, PYMNTS recent data on consumer intention around getting a vaccine indicated that perhaps they shouldn’t. Said simply, more people need a reason to get the vaccine. When directly asked a few days after the news of the first 90+ percent effective COVID-19 vaccine when public, a little over at third of those surveyed (37.9 percent) indicated intentions to get a vaccine. They were slightly led by the 38.4 percent who report they are definitely not getting the vaccine at all.
Vaccines work because they synthetically create herd immunity within human populations by rendering such a large share of the population immune to the disease that the virus can no longer spread. To achieve herd immunity with 90+ percent effective vaccine approximately 80 percent of the U.S. population would have to show up to get the vaccine. The 38.4 percent already planning on getting the vaccine is not enough. Even if we add in the 23.7 percent of respondents who told PYMNTS they weren’t sure, that is only 75 percent of the way to the 80 percent vaccination rate necessary for the COVID-19 vaccine to provide herd immunity.
Notably, however, PYMNTS only asked consumers about their plans separate from any other context of consideration. How much of that 38.4 percent would rapidly switch their answer from a hard no to a grudging yes if their ability to return to work actually depended on their seeking out and getting the COVID-19 vaccine in another question. It might not be enough to change everyone’s mind — but from the point of view of upping vaccination and getting the world back to normal, it doesn’t have to. Roughly half of those no answers changing to yes would be enough to get to 80 percent.
Meaning employers looking to the return of something resembling normal, in fact have a pretty good reason to pushily persuade their workers to get a vaccine.
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