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Legislation proposed in many states that would stop employers mandating COVID-19 vaccinations and protect those who refuse to be vaccinated likely won’t make it onto many statute books, but the measures could still cause problems for employers.
Even if only a handful of states pass legislation, it would hinder a smoothly functioning, uniform policy for employers with operations in multiple jurisdictions, experts say.
“That could be a minefield for employers,” said Kevin J. O’Connor, co-chair, labor and employment practice, at Peckar & Abramson P.C. in River Edge, New Jersey.
For now, the bills generally are still in committee and have not gained widespread attention, observers say.
A survey conducted by law firm Husch Blackwell LLP earlier this month found some variation among the state bills.
Several would permit employer-mandated vaccinations, but expand the religious exemptions required under federal law to recognize “any philosophical objection or objection of the conscience,” according to the analysis.
Others would prohibit employer-mandated vaccinations outright, while some would permit them only for those who work in a health care facility.
The legislation reflects a strong vein of public sentiment against the vaccinations. A survey by the Associated Press-NORC Center for Public Affairs Research in February found that a third of U.S. adults are skeptical of COVID-19 vaccines and say they definitely, or probably, will not get vaccinated.
Employment experts generally advise employers to encourage their workers to be vaccinated against COVID-19 but recommend they not demand it, even if they can do so legally.
The concept of employers having certain rights with respect to vaccinations is not new, with health care employers, for instance, long being permitted to mandate flu shots in certain cases.
However, “in the past year, COVID has certainly changed the discussion and the dynamics,” said Aimee E. Delaney, a partner with Hinshaw & Culbertson LLP in Chicago.
Employers already face restrictions under federal and state laws on whom they can require to receive a vaccination, based on religious beliefs and medical issues, observers said.
But few of the bills allowing wider exceptions are expected to pass.
“It does appear these bills are not being very successful, and I really hope they won’t be,” said Robin E. Shea, a partner with Constangy, Brooks, Smith & Prophete LLP in Winston-Salem, North Carolina.
There would have to be exceptions for workers in health care as well as in public-facing jobs, such as retail or restaurant workers, and those who are not “just going into their own individual offices and closing their doors,” she said.
As a practical matter, the bills would have limited effect if enacted, because few employers are mandating vaccinations, in part because of legal issues surrounding the accommodations, said Eric B. Meyer, a partner with FisherBroyles LLP in Philadelphia.
The legislation barring forced vaccinations “sounds more like political theater,” he said.
Mario R. Bordogna, a member of Clark Hill PLC in Morgantown, Pennsylvania, said a potential problem with such legislation is employees who refuse vaccinations and are then terminated may claim it was because of their anti-vaccination position.
But, “even if the bills don’t get passed, employers should take it to heart that they’re being proposed when thinking about having a mandated vaccine policy, because it shows you the hostility out there to mandating a vaccine,” said Karla Grossenbacher, a partner with Seyfarth Shaw LLP in Washington.
Dorit Rubinstein Reiss, a law professor at the University of California Hastings College of Law in Berkeley who is a vaccine expert, said ways to accommodate employees who do not want to be vaccinated include having them wear extra personal protective equipment, permitting them to work offsite, giving them personal time off, or providing incentives such as a reward to get the vaccine.