COLUMBIA, S.C. (WIS) - The coronavirus vaccine is being touted as the key to getting Americans back to work, but can your employer make you get it?
“For most employers, the answer is going to be yes, they can,” explained David Dubberly, chair of Nexsen Pruet’s Employment and Labor Law Group.
The Equal Employment Opportunity Commission (EEOC) and Occupational Safety and Health Administration (OSHA) have not yet released employer guidance on the coronavirus vaccine.
However, during the H1N1 outbreak in 2009, Dubberly says both groups supported employers making a vaccine mandatory during that health emergency.
“Employers are required by law by the Occupational Safety and Health Act to protect their employees from any known dangers,” said Dubberly. “Obviously, COVID is a known danger, so really for employers to satisfy their responsibilities to protect their employees, they are all going to be looking hard at at least strongly encouraging employees to receive the vaccine.”
But in 2009, both the EEOC and OSHA also required employers to make accommodations for those with serious medical conditions or religious beliefs.
The Americans with Disabilities Act (ADA) protects employees who don’t want to be vaccinated because of medical reasons, and under the Civil Rights Act of 1964, workers who oppose vaccines because of religious beliefs could also potentially opt out.
“Individuals do have protected rights, and those rights not only go to civil rights, but they are rights protected by some religious organizations,” explained Lewis Cromer, managing partner at Cromer Babb Porter & Hicks, LLC. “It’s very difficult to enforce that kind of a rule by an employer without violating those rights. In fact, it’s almost impossible.”
South Carolina is a right to work state, meaning you can be fired for just about any reason as long as it’s not illegal, but Cromer says you can’t be let go based on discrimination.
“I think if an employer terminated someone under the right to work setting because they did not take the vaccine on a mandated basis, I think that individual would have a right of action to contest that,” explained Cromer.
If someone refuses to get the vaccine due to religious beliefs or a medical condition, both attorneys believe employers could make accommodations, such as allowing the employee to work remotely.
But in health care, child care, and long-term care facilities where flu vaccination has been required for years, it could be more likely for these employers to impose a mandatory COVID-19 vaccination policy.
“In an area where the risk is magnified, such as a hospital setting, particularly an ICU setting where there is a much greater risk of spread, I think then the scales tilt themselves in favor of the employer or health provider taking those kinds of steps,” said Cromer. “Even though they may run some risk or some opposition with their employees about taking the vaccine.”
Experts also note it will be hard for companies to make the vaccine mandatory while it’s still under an emergency use authorization. But they add that an employer would not be liable if they required an employee to get the vaccine and that employee developed adverse side effects. In that case the employee may, however, qualify for a worker’s compensation claim.