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Can Employers Legally Mandate a COVID-19 Vaccine?

Published on : 29/09/2021 29 September Sep 09 2021
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As the COVID-19 worldwide pandemic continues, businesses and their employees are constantly adapting to this health crisis to reopen to the public safely. The unemployed are looking ahead to getting hired, and remote workers are preparing to return to the office. These events bring questions and concerns centered on mandatory vaccinations for all employees and the legality behind them. Though there are certain constraints, the short answer is yes. Employers can make vaccinations required for employment.

         Mandating vaccines is not a new concept.  George Washington was the first to mandate smallpox inoculation.  There was no vaccine, but a process permitted limited exposure to smallpox to develop immunity.  


40,000 troops had been inoculated with smallpox under Washington’s mandate by 1777.

A middle-aged minister argued that the vaccines caused injury and posed a danger to recipients one hundred fifteen years ago. Mandating vaccines “invaded his liberty”. 

In a 7-2 decision in 1905, the Supreme Court upheld the law. Justice John Marshall Harlan wrote a majority opinion, noting there was a century of understanding from physicians that vaccines prevent the spread of infectious diseases. The chance of vaccine injury exists, but that risk is “too small to be seriously weighed” against the benefits of vaccination, the court ruled. The liberty established by the U.S. Constitution, he wrote, isn’t an absolute right for every person to always be freed from all restraint.

“In every well-ordered society charged with the duty of conserving the safety of its members, the rights of the individual in respect of his liberty may at times, under the pressure of great dangers, be subjected to such restraint, to be enforced by reasonable regulations, as the safety of the general public may demand,” he wrote. 

By 1908 there were anti-vax groups in Philadelphia arguing that a vaccine mandate created “medical tyranny”.

Sound familiar? We are still hearing similar arguments today. 
 

Federal Requirements & Guidance  

President Biden signed an executive order in which federal employees and contractors must get a COVID-19 vaccine, removing the option to undergo weekly testing. Alongside The Department of Labor, the President also recently announced a new rule requiring every business with 100 or more employees to mandate that their workers be vaccinated. It is estimated to impact over 80 million workers. The exceptions required by law are religious beliefs and medical conditions. With the Pfizer-BioNTech vaccine, FDA approved, the Biden Administration will continue to encourage all companies to follow this guideline.  
 
Here’s what employers should be aware of as they consider revising their internal COVID-19 vaccination and safety policies. 
 

EEOC Updated Guidance 

The U.S Equal Employment Opportunity Commission (EEOC) issued a statement declaring that employers can mandate COVID-19 vaccinations for employees who physically enter the workforce without running into federal anti-discrimination laws such as an illegal medical examination. 
 

Justice Department in Support of Mandate 

The Justice Department addressed the rights of employers and workers by tackling the common argument that the federal Food, Drug, & Cosmetic Act prohibits employees from requiring vaccinations used in a state of emergency. Lawyers from the department gave guidance on how individuals must be informed of their option to accept or reject the vaccine; however, it is a legal right for companies to require it as a condition of employment. Additionally, now that Pfizer is approved and the rest are on their way, the argument of it being illegal is invalid. 
 

Lawsuits Surrounding Mandatory Vaccinations 

A few lawsuits have been filed in hopes of fighting against these obligations. 
MSN reported that a federal district court in Texas dismissed a case this year against the Houston Hospital by 117 employees who did not support the required COVID-19 vaccinations. They argued that a vaccine could not be mandated for emergency use. However, judge Hughes stated that the employees were “refusing to accept inoculation that, in the hospital’s judgement, will make it safer for their workers and the patients in Methodist’s care”. The final decision is now in the appeals process in the Supreme Court. 
 
Similar cases have also been filed. In New Mexico, a detention center employee from Dona Ana County said that was he was threatened with termination from his job due to his refusal of the vaccine. Despite this, it has been determined that vaccination mandates do not break any federal laws
 

Reasonable Accommodations  

If an employer chooses to implement this mandate, they must also provide reasonable accommodations for those unable to receive the vaccine due to medical and religious exemptions. 

Chelsea Smith, a labor and employment attorney in the Oklahoma City office of Hall Estill, claims in a SHRM.org article, “private-sector employers should seek legal advice and be sure to craft a mandatory vaccine policy that provides for exemptions for people with qualified disabilities”. Both are defined under the Americans with Disabilities Act and Title VII of the Civil Rights Act.  

Remember that these accommodations can be done in different ways, such as remote work or changing the physical environment. It is up to the employer to find the best solution without imposing any risks towards a safe workspace for both parties. 
 

Next Steps  

Here are the best practices legal sectors can follow as they move forward with a vaccination policy: 
 
  1. Institute an ethical framework- Revisit mission statements and values and apply them throughout the policy. It is essential to show how the health and safety of employees is a priority.  
  2. Develop an analysis of the advantages and disadvantages of providing vaccines to workers. Data currently shows that chances of spreading covid are significantly less when vaccinated. 
  3. Ensure that the policies regarding medical and religious exemptions are implemented and consistent with state regulations. 
  4. Monitor vaccination rates- Automation can help with this by processing, managing, and reporting rates. Doing so demonstrates how the policy is equally applied. 

As this is an evolving legal issue, the courts may take mandates in a different direction as organizations’ policies are challenged in the courts. 

As of today, it’s expected for mandates to increase beyond just healthcare. The opportunity is for more employers to lead by example and begin this process to control the spread of the Coronavirus.  


About the author: Legal Suite is the worldwide leader in digital transformation for lawyers. We have delivered our state-of-the-art software for lawyers, law firms, and in-house general counsel to 65,000 users for over two decades. www.legal-suite.com 
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