Should an employer require COVID-19 vaccinations for employees?

By Neal Langerman, PhD

Vaccines approved under Experimental Use Authorizations (EUAs) will be available soon. In theory, this should make re-opening businesses easier. As immunity develops within the population, the case count will drop, and the many restrictions will be eased. Realistically, individual immunity will require about 2-3 months following the initial vaccine dose to develop fully. At best, in the U.S., everyone who wants a vaccination should be able to get two doses by late second quarter 2021. This will vary significantly in other parts of the world. But, one in three people polled in August said they would refuse to be vaccinated (Paulsen, 2020). The “anti-vax” presence on social media has grown significantly (Burki, 2020). In this environment do you, as an employer have a duty or moral responsibility to insist your employees be vaccinated, and can you do that?

The law makes it clear that a state government can mandate employee vaccinations. In the 1905 case of Jacobson v. Commonwealth of Massachusetts, the U.S. Supreme Court held that States have the authority to require vaccinations. The Americans with Disabilities Act (ADA) defines vaccinations and health screenings as “medical examinations” and, therefore, an employer-mandated vaccination must be job related and consistent with business necessity. In the opinion of Dorit Reiss (Weise, 2020) of the Hastings College of Law “Legally every employer can require it – you don’t have to be a high-risk employer to require it. On one hand, employers will be concerned about pushback from employees. On the other hand, they’ll also be concerned about COVID outbreaks that can be prevented.” Other laws are addressed further by Widener (Widener, 2020).

While OSHA has been reticent dealing with the pandemic and has issued citations mainly addressing respirator use (Agency, 2020), the General Duty Clause of the Occupational Safety and Health Act makes it clear that the employer has a duty to take action to prevent illness from spreading in the workplace. There is clear precedent for vaccinations within the healthcare industry. Given the infectivity of SARS-CoV2, it is realistic for employers to protect their employees and their business by requiring all employees to be vaccinated (Widener, 2020).

Carve-outs to the mandate for religious reasons, for medical reasons and possibly for personal/philosophical reasons should be provided. Large employers should consider offering onsite clinics, open to employees and their families for vaccination. Small employers can provide release time and compensation for employees to go to public access vaccination locations. Employees should be reassured that if side effects occur, they will be taken care of medically and financially. Recent reports from the phase III trials suggest that vaccine recipients may exhibit moderate flu-like symptoms during the 24-36 hours following the second dose. Employees knowing they will not be penalized for staying home under those circumstances will be reassured and more willing to be vaccinated.

There are downsides to such a mandatory requirement. Pushback by employees is certainly possible. If a union is involved, pushback could be complicated depending on the contract. Since a vaccine approved under an EUA is considered “investigational,” the application of existing laws, regulations and precedents is a bit uncertain. On this last point, Stephen Hahn (Weise, 2020) FDA Commissioner said (Weise, 2020), “It’s possible that some employers or schools will have questions or concerns about an investigational product issued an Emergency Use Authorization, which is why we will be as transparent as possible about the data and information we use to make our decision. This should help those organizations determine what is most appropriate for them.”

The message is clear: follow the FDA and CDC guidelines and recommendations.

What then should a business owner do? Legally, you can require employees to be vaccinated as long as you can make a credible argument of a business necessity. Protecting your production staff should be adequate. You must make the moral decision based on your beliefs and self-interests. For me, I would urge all employees and their families to be vaccinated and provide incentives for them to do so. Certainly, a bonus of $100 per family member vaccinated is a small investment to assure a healthy employee base.

Stay safe and stay healthy. WMHS

Agency, 2020. U.S. OSHA. [Online]
Available at: https://www.osha.gov/enforcement/covid-19-data/inspections-covid-related-citations
[Accessed 10 12 2020].

Burki, T., 2020. Digital Health. [Online]
Available at: https://www.thelancet.com/journals/landig/article/PIIS2589-7500(20)30227-2/fulltext
[Accessed 7 12 2020].

Paulsen, S. K., 2020. CIDRAP. [Online]
Available at: https://www.cidrap.umn.edu/news-perspective/2020/10/who-will-accept-covid-19-vaccine
[Accessed 10 12 2020].

Weise, E., 2020. www.usatoday.com. [Online]
Available at: https://www.usatoday.com/story/news/2020/11/24/fda-commissioner-stephen-hahn-timing-safety-covid-19-vaccine/6393865002/
[Accessed 7 12 2020].

Widener, B., 2020. Can Employers Require Employees to Be Vaccinated AgainstCOVID-19?. The National Law Review, 6 December.X(341).

Dr. Neal Langerman provides litigation support and expert testimony for both defendants and plaintiffs in litigation involving a wide variety of chemical-related issues. Advanced Chemical Safety (www.chemical-safety.com).