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Can your employer require you to get a COVID-19 vaccine to return to work and could Congress pass a law requiring everyone to get vaccinated?
The short answer is yes. But that doesn’t mean employers won’t face a “legal minefield” if and when they decide to implement a vaccination policy. Although employees can be required to take a test as a precondition of their returning to work, according to trial attorney Misty Marris, “there is no world where there is a COVID-19 mandatory vaccination policy that doesn’t have exceptions to it.” Marris, who deals heavily in employment law, is the co-managing partner of the New York office of Gordon Rees Scully Mansukhani LLP.
As the U.S. waits for the COVID-19 vaccines from Pfizer/BioNTech, as well as Moderna, to get emergency use authorization from the Food and Drug Administration, employers have to be ready to set up a framework for how employees will be allowed to come back safely. For both public and private employers, this may mean encouraging employees to get vaccinated or implementing mandatory vaccination programs (Fox Business).
The Emergency Operations Center (EOC), which has issued guidance to employers throughout the pandemic, says the virus meets the standard of a “direct threat.” Since the virus is deemed a direct threat, employers have the ability to implement health checks in the workplace that would not normally be allowed under federal law in pre-pandemic times, according to Marris. This means employers have the ability to take someone’s temperature before they come in or tell someone that they need to leave because they are exhibiting symptoms.
“While there is nothing that says it’s illegal” for an employer to have mandatory vaccination programs, that doesn’t mean it isn’t a “thorny, thorny road.” However, every mandatory program will have to take into consideration other aspects of employment laws, Marris said, which she predicts will result in various accommodation requests. Some experts are already calling on employers to make it mandatory, which, they say, would generally be legal. But others caution against mandates, saying that they could backfire by making Americans more resistant to a vaccine they’re already concerned about.
Two major exemptions that are going to come into play are religious exemptions and ones related to disability. Under Title VII of the Civil Rights Act of 1964, a sincerely held religious belief can serve as the basis for a religious exemption. “In the context of a vaccine, an employee could ask for an exemption to a mandatory vaccination on the basis of religion,” Marris said, adding that the employer is then required to consider whether the accommodation can be granted. In this case, this may mean remote work or social distancing. However, if the employer doesn’t grant the accommodation “they have to prove that the accommodation poses an undue hardship on the company.”
Secondly, employers have to take into consideration the Americans with Disabilities Act of 1990 (ADA). If an employee requests an accommodation under the ADA, they have to establish that they have a disability. You may have an employee that says they have a chemical sensitivity to something in the vaccine. Employees can also cite allergies as a reason. However, there are a slew of other things to consider, including people saying they have anxiety related to the possible side effects of vaccinations. There is a question on whether that would qualify as a medical condition, which depends on what jurisdiction someone is in.
“Whether courts extend protection for anxiety in a pandemic world is unknown,” she added. At the end of the day, however, “employers want to think about more than just liability,” Marris said. “You want to think about your workforce, workforce morale.”
1 in 3 Americans say they wouldn’t get a COVID-19 vaccine today even if it were free and approved by the Food and Drug Administration, according to a Gallup poll conducted July 20 through Aug. 2. The most common reason why some Americans are nervous about the vaccine is the speed with which it’s being developed, followed by fears that the risks will outweigh the benefits, according to a Reuters/Ipsos poll conducted May 13-19 (USA Today).
Could Congress pass a law requiring every U.S. resident to get vaccinated? While it would be a swift legislative action that in theory might move the US closer to the goal of herd immunity to protect those who are most vulnerable, such as the elderly, a federal mandate would probably also face legal challenges. Moreover, Congress may not have the legal authority to mandate vaccinations.
Congress has broad powers. With its ability to regulate interstate commerce, for example, it may be able to ban unvaccinated people from traveling on airplanes. Or, it might use its spending power to push states to enact certain policies by making them a condition for receiving federal funds. States do, in fact, have the power to require citizens to receive vaccinations under some circumstances. In the 1905 Jacobson case, the U.S. Supreme Court decided that, because of the states’ interest in protecting public health, the vaccine requirements in question did not violate personal liberty. All states require that children be vaccinated for school — and those requirements have been consistently upheld.
Congress has also stepped into the vaccination fray through the Public Health Service Act (PHSA), which grants the federal government the power to prevent the spread of disease, such as through quarantine. One way the PHSA helps prevent outbreaks is by offering states and localities grants to improve vaccination rates through subsidies, education and outreach. However, these examples of congressional authority are not likely to hold up in court.
A federal vaccine mandate may be found unconstitutional under the Commerce Clause because it would regulate activity that is not solely economic. Regardless of the national interest, it will also be hard for Congress to use its spending power or its authority under the PHSA to compel states toward a vaccine mandate without appearing coercive. In fact, when Congress threatened to withhold new and existing Medicaid funds from states that failed to expand it, this coercion led the Supreme Court to strike down the Medicaid expansion in the Affordable Care Act.
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