Employers have the legal right to require COVID vaccinations

United States Department of Veterans Affairs. State California. New York. Hospitals and nursing homes. Colleges and universities. Employers are enacting COVID-19 vaccination requirements and this is getting attention.

President Joe Biden said Tuesday that the requirement is being considered for all federal employees. But what if the workers refuse?

A federal legal guide released this week suggests employers have the law on their side. Vaccination can be viewed as a “hiring condition”, akin to occupational qualifications.

However, employment lawyers believe that many companies will want to accommodate indecisive workers.

Can employers demand a vaccine?

Yes. Private companies and government agencies may require their employees to be vaccinated as a condition of work there. Individuals reserve the right to refuse, but do not have a firm right to legal protection.

“Those with disabilities or sincerely professing religious beliefs may be eligible for reasonable accommodation under civil rights laws, as long as the accommodation does not create undue hardship for the employer,” said Sharon Perley Masling, an employment lawyer. who leads the COVID-19 task force at Morgan Lewis.

Employees who do not meet these criteria “may have to go on vacation or look for other opportunities,” she added.

This week the US Department of Justice reviewed the rights of employers and workers in a legal opinion. It addressed an argument put forward by some vaccine skeptics that federal food, drug and cosmetic law prohibits employers from requiring vaccinations with vaccinations that are only allowed for emergency use, like coronavirus vaccines currently.

The department’s lawyers wrote that the law in question requires people to be informed of their “ability to agree or refuse to administer” a vaccine or emergency drug. But this requirement does not prohibit employers from requiring vaccinations as a “condition of employment”.

The lawyers added that the same arguments apply to universities, school districts or other organizations potentially in need of COVID-19 vaccines. The available data overwhelmingly show that vaccines are safe and effective.

The DOJ’s view is based on earlier FCC recommendations that federal laws prohibiting discrimination in the workplace “do not prevent an employer from requiring all employees who physically enter the workplace to be vaccinated against COVID-19.”

The EEOC has listed some cases in which employers must offer benefits. People with medical or religious reasons can be accommodated through alternative arrangements. This could be weekly testing, wearing masks in the office, or working remotely.

Who needs a vaccine?

On Monday, the Department of Veterans Affairs became the first major federal agency to require healthcare providers to make a COVID-19 vaccine. Also on Monday, the state of California said it will require millions of healthcare workers and government officials to show proof of COVID-19 vaccination or get tested weekly. And New York will require all of its municipal employees, including teachers and police, to be vaccinated against the coronavirus by mid-September or be tested weekly.

Raising expectations, Biden said on Tuesday that the requirement to vaccinate all federal employees is “currently under consideration.” He promised to outline the next steps for his administration’s suspended vaccination campaign later this week.

“The more we learn about this virus and its delta variations, the more we should worry and worry,” the president said, adding that if another 100 million Americans were vaccinated, “we would be in a completely different world.”

Vaccine promotion in the corporate world was fragmented. Delta and United airlines require new employees to provide proof of vaccination. Goldman Sachs requires its employees to disclose their vaccination status, but does not require employees to be vaccinated.

Michelle S. Strohiro, employment adviser and attorney at McDermott Will & Emery, said employers who require vaccines come with costs. There is an administrative burden of tracking compliance and managing release requests. Claims of discrimination may also arise.

But in the end, the rise in delta and breakthrough cases among fully vaccinated people “served as additional motivation for employers to take a tougher stance on vaccinations in general,” she said. “Employers will pay more and more attention to vaccine requirements.”

Is there any other alternative to mandates?

Rather than demanding a vaccine, some companies try to entice workers by offering cash bonuses, paid vacations, and other rewards. Walmart, for example, is offering a $ 75 bonus for employees who provide proof that they have been vaccinated. Amazon gives workers a $ 80 bonus if they show proof of vaccination, and new hires receive $ 100 if they are vaccinated.

What options are there for employees if they don’t want to take the vaccine?

Most employers are likely to provide workers with several options if they do not want to take the vaccine. For example, New York and California have introduced a so-called “soft mandate” – instead, workers who do not want to get vaccinated can get tested weekly.

If the employer sets a strict requirement, employees can ask for an exemption for medical or religious reasons. Then, in accordance with the EEOC civil rights rules, the employer must provide “a reasonable accommodation that does not unduly complicate the employer’s business.” Some alternatives could include wearing a face mask at work, social distancing, working shift shifts, testing COVID-19 or being able to work remotely, or even offering reassignment.

Will workplace requirements affect the vaccine?

It’s too early to tell.

“Every employer who decides to introduce mandatory vaccinations gives other employers the opportunity to feel safer,” Masling said.

A recent court ruling may help move the needle. In June, a Texas federal district court rejected an attempt by medical professionals to challenge the legality of vaccinations at Houston Methodist Hospital. The court considered such a requirement to be in accordance with public policy.

Dorit Reiss, a law professor specializing in vaccine policy at the University of California’s Hastings College of Law, said “more businesses will be confident they can demand a vaccine.”

She believes most companies will follow a soft mandate path with alternatives for employees who don’t want to.

“I think this is a reasonable option,” she said.

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