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Workplace safety rules may clash with federal protections for individual rights if employees resist potential employer efforts to require them to take a prospective COVID-19 vaccine, but safety considerations will likely carry more weight in court, several legal experts say.
As the country grapples with unprecedented shutdowns of schools and businesses and the threat of widespread coronavirus infections, several groups working on vaccines have reported promising early results.
If successful initial trials lead to mass production of one or more vaccines – which some experts say could happen before year’s end – there remain questions over whether all workers will accept the vaccine as a protocol for preventing the spread of COVID-19 and whether employers can force them to take the vaccine as a condition of coming to work.
“When there is a vaccine, it will be a gamechanger, but it will raise issues,” said Dennis Brown, managing shareholder in the San Jose, California, office of Littler Mendelson P.C., which represents employers.
“Because COVID-19 is highly contagious and dangerous for some people … there will be a big rush by employers to require vaccinations, and part of that is driven by fear,” he said. “Employers will be under tremendous pressure to require the vaccine.”
Yet Mr. Brown and other employment law attorneys say they are bracing for challenges to vaccine requirements.
Employers may require vaccines to comply with regulations such as the U.S. Occupational Safety and Health Administration’s general duty clause, which calls for employers to provide safe work sites. But they also face requirements to comply with legal exemptions for individuals on the basis of health or religion.
Title VII of the Civil Rights Act, for example, bars employment discrimination on the basis of religion, among other things, and the Americans with Disabilities Act states that a disabled person can be exempt from receiving a mandatory vaccination under certain conditions.
“The Title VII and ADA disability accommodations are not new to employers, but this context is new,” said Casey Denson, a New Orleans-based employment law attorney for her own firm, Casey Denson Law LLC, which represents employees. She said there’s no legal precedence concerning vaccine exemptions for COVID-19, so it’s unclear how courts will rule.
Mr. Brown said courts are “less hospitable” to religious exemptions than to medical concerns “as a general rule” and that the pandemic could further tip the scales away from accepting personal religious exemptions in favor of protecting all workers and businesses. Overall, in health care settings, exemptions almost never stand as “the balancing test you go through between individual liberty and public health and safety tilts heavily to public safety,” he said.
The U.S. Equal Employment Opportunity Commission in March updated its guidance on employment, illness and individual rights to include COVID-19 in its language and pointed to other entities such as the Centers for Disease Control and Prevention and laws such as the ADA for clarification.
How the EEOC guidance would pertain to a COVID-19 vaccine remains to be seen, Ms. Denson said.
“It’s going to depend on the type of business you have, whether you are interacting with coworkers, customers or older individuals” shown to be at risk for COVID-19 complications, she said. “Even though we have legal frameworks for decisions on vaccines it’s going to be a complicated decision.”
“We will have to see how things play out,” said David Kurtz, Boston-based partner with Constangy, Brooks, Smith & Prophete LLP, which represents employers.
“When it came to influenza vaccines, the EEOC said employers should consider encouraging people to get vaccines but not force them. (COVID-19) will absolutely shake things up. One of the things that is so unusual with COVID-19 is when people have the flu they know it; when it comes to COVID-19 you hear that people are asymptomatic. That’s part of the problem employers are facing.”
Samuel Burgess, Syracuse, New York-based senior counsel with Bond, Schoeneck & King PLLC, said courts will likely side with employers seeking to protect their entire workforce through compulsory vaccinations.
“We’ve seen this in the schools context with the measles and the flu shot requirements in the health care setting, and how courts aim to look at protection for the public and the greater good,” he said.
“It could be a government mandate” for everyone to get the COVID-19 vaccine, said Mr. Burgess, whose firm represents employers.
“With COVID being what it is now and being as deadly as we have seen, and spreading as it has, it has the potential for the employer to have a better argument for business justification to (require vaccinations)” he said, adding that the “direct threat to other employees” who work with someone who is not vaccinated against the virus “could be the justification for getting around those exemptions.”
Hermes Fernandez, an Albany, New York-based member of Bond, Schoeneck & King’s health, government and regulatory affairs practice and a former chief of the health law section of the New York Bar Association, said mandated vaccinations aren’t “unusual.” Schools, for example, have long required them to prevent the spread of such illnesses as measles, he said.
The bar association has formulated a position statement that it is expected to vote to accept in November, calling for mandatory vaccinations, he said. “Most states have laws regarding vaccines,” he said. “It’s actually a mainstream idea to say that at some point … a COVID-19 vaccine should become mandatory.”
Ms. Denson said employers should brace for opposition among employees to a vaccine. “The politics of this have been so divisive; I suspect that the vaccine will be just as politicized as the mask,” she said.