Can employers mandate COVID-19 vaccines?
In what may be a classic clash of rights and responsibilities, should employers — especially retailers and restaurants that are struggling to survive amid public orders to be as antiseptic as possible — be allowed to require that their employees get a COVID-19 vaccine?
It’s a question both employers and employment law attorneys are wrestling with, but employers are in the most difficult spot as they balance their employees’ medical rights and their customers’ expectations to shop and accept deliveries in a virus-free environment.
After stage 1a (health care personnel and long-term care facility residents), and the current stage of 1b (frontline essential workers and people age 75 years and older), the Centers for Disease Control and Prevention has put people ages 65–74 and people ages 16–64 with underlying medical conditions and other essential workers (including food service workers) next in line for the vaccine.
The obvious reason why restaurants would be reluctant to require their employees to get the vaccine is that they don’t want to intrude on an employee’s medical rights, and mandating a vaccine could cross that line. The potential damage to employee relations is a risk they might not want to take, especially with the pandemic’s finish line in sight and the labor shortage still very much an issue.
However, according to Jennifer Mirus, an attorney with the law firm Boardman & Clark in Madison, there currently is no state or federal law that directly prohibits Wisconsin employers from requiring employees to be vaccinated against COVID-19. That soon could change because in December 2020, the majority leadership in the Wisconsin State Assembly proposed language that would outlaw any effort to force an unwilling person to receive a vaccine.
An employer’s ultimate decision in this delicate balancing act might simply be to leave the vaccination decision up to employees but insist that those who don’t get a vaccine continue to work remotely. While both the Pfizer-BioNTech and Moderna vaccines are 95% effective, subsequent vaccines might not provide that much protection, and employers can provide an extra shield by having only vaccinated employees return to the workplace — to the extent that it’s practical. In manufacturing settings, where workers have to be on the plant floor to do their work, it might not be practical.
As always, there are some caveats in existing law, but employers appear to have the upper hand in requiring the vaccine if they choose to. “Under current law, employees who object to getting vaccinated on religious grounds or because of a disability have the right to challenge any vaccination requirement,” Mirus notes. “The federal Equal Employment Opportunities Commission [EEOC] has determined that at present, the COVID-19 pandemic is a direct threat because of the possibility of death, which gives employers more leeway to require the vaccine or prohibit the employee from being at work.
“The fact that both vaccines have only been approved under an emergency use authorization, or EUA, further complicates the issue for employers and may create hurdles to mandatory vaccinations. The vaccination issue highlights the balance employers can face between workplace (and public) safety and the private sphere of their employees.”
Employers, especially in the first several months of 2021, should monitor any state or federal legislative changes that are under consideration, and they should keep track of CDC guidance on who should get the vaccine at various stages.
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