Can your employer require you to get a Covid vaccine? Here’s what experts say
On Tuesday, Moncef Slaoui, chief science advisor for Operation Warp Speed, the federal government's $18 billion vaccine development initiative, estimated that the majority of U.S. citizens could receive a coronavirus vaccine by June.
"Hopefully by the middle of the year, I hope most Americans will have been immunized," he said. "Which means the level of hesitancy that exists currently will have been decreased because people will have learned more information...about the vaccine."
While public confidence in a coronavirus vaccine is growing, a November Gallup poll found that 42% of Americans still would not agree to be vaccinated against the virus and many fear that skepticism could become a barrier to protecting people and helping them get back to work.
This tension, among those who are hesitant about vaccination, health experts who emphasize its importance and employers who see a vaccine as their ticket back to business as usual, has raised several questions. Among them, "Can an employer require that workers get vaccinated?"
Can employers require Covid vaccination?
"In general, yes, employers are able to mandate the vaccine when it becomes available with, of course, a bunch of caveats," says employment lawyer Lindsay Ryan, listing possible exemptions for those with specific medical conditions and those with sincerely held religious convictions.
Ryan emphasizes that state laws regulating what constitutes reasonable accommodations for religious groups vary significantly, but that "under federal law, employers don't have to grant a religious accommodation if doing so would result in more than a de minimis cost to the operation of the business."
"De minimis" is Latin for "of minimum importance" and is used in law to refer to a total so small that it is not even recognized. Given how significantly the pandemic has impacted businesses, Ryan says "this is a pretty low standard." Meaning, many employers will likely have legal ground to require vaccination.
She adds that being a so-called "anti-vaxxer" or being "naturally fearful of taking a vaccine that is brand new" would likely "not suffice to get out of an employer-mandated vaccine."
Is a vaccine mandate most effective?
Despite this legal precedence, Ryan says she recommends to her clients that they consider making accommodations — even if they are not legally required to.
"More than other vaccines that might have been either encouraged or required in the past, such as the flu vaccine, we're going to see a lot more pushback from fearful employees," she predicts. "This is going to be particularly true of employees that haven't felt like they've had an opportunity to learn about and fully understand the vaccine. [Mandating vaccination] could result in low employee morale. It could even result in reducing the workforce if employees feel like it's an ultimatum that they're not going to accept and they would rather forego the vaccine and lose their jobs."
To combat this reluctance, some employers may consider encouraging and incentivizing vaccination — rather than simply requiring it.
"I'm sure that we will see more employers mandate this vaccine than we've seen historically mandate vaccines. Typically we mostly see vaccine mandates in industries like health care and education," says Ryan. "Now, we're going to see a much broader spectrum of the industries actually requiring it, but I hope and think that there will also be a good amount of employers who are not going to go so far as to actually mandate, but rather just strongly encourage it."
"You can accomplish [vaccination] without forcing people," says Dr. Howard Forman, director of Yale University's MD/MBA program, recalling a time when he received his flu vaccination in exchange for getting a piece of cake. "Maybe it takes more than a sheet cake in this case, but you can create small financial incentives. You can give people discounts on co-pays. You can do things with insurance that would make getting a vaccine better than free."
Why is vaccination important?
Ultimately, Forman says that clear communication and strong leadership will be vital tools for vaccinating workers and protecting communities.
"The best thing we can do in that case is have intelligent people, people who are educated, people who understand the science behind it, people who can explain without pandering, without lying to people that, yes, we do not know long-term side effects. Yes, we are going to have to make decisions with uncertainty. But the weight of the evidence is so strongly in favor of doing this vaccine," he says. "We've proven with vaccination programs that they work, they reduce disease, they reduce long-term problems."
Forman says that pledges from leaders to take the vaccine, such as the one made by former presidents Obama, Bush and Clinton, can help ease fears and build confidence in a vaccine that will be essential for the country to return to normal.
"The fastest way for any family unit or work unit to go back to coexisting in a normal environment is for everybody to be vaccinated. It's not going to be enough to have two-thirds of the workplace vaccinated if one third is still vulnerable and not vaccinated," Forman says. "If there is a person in your workplace that's not vaccinated right now, you're still wearing masks, you're still social distancing. You still can't have 15 people in the conference room."
"Getting back to normal, based on what we know at this moment in time, requires entire units to be vaccinated. And that's going to be difficult for employers."
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