The pandemic has taken a devastating toll on millions of U.S. businesses, but now there’s light at the end of tunnel. In the coming weeks, drug makers are poised to distribute highly effective COVID vaccines that could soon end the outbreak.
So long as people agree to get vaccinated.
The advent of the vaccines is great news for the country. But it also creates a quandary for employers who are already navigating tricky legal issues related to COVID, such as whether they can require workers to come into the office. In the case of the vaccines, can companies force employees to get a shot?
The short answer is yes. According to Jonathan Segal, a partner at Duane Morris who specializes in employment law, the legal bar for mandatory vaccinations requires showing a “strong business necessity.” And given the nature of the pandemic, companies should be able to clear that bar.
“There’s a very strong case that preventing a deadly disaster is a business necessity, especially now that we have a quarter million people dead,” Segal says.
In practice, this means that an employer could punish or terminate workers who refuse to get a vaccine since their refusal will endanger customers and coworkers. But of course there are nuances.
Segal notes that the case for mandatory vaccines will vary depending on what type of work someone does. An employee who works in a busy store or crowded office, for instance, would likely have to get a jab, while someone who mostly works by themselves might not.
Then there are the workers who will demand an exemption on medical or religious grounds. In these cases, Segal says, an employer may have to find a way to provide reasonable accommodation—a task that could be easy in some cases, such as having the employee work from home, and near impossible in others.
Employees who refuse to get vaccinated on religious grounds may present a particular challenge since, in some cases, it may be hard to tell if their refusal is based on a sincere religious belief—or is instead a political objection dressed up as religion.
Who will pay for COVID vaccines?
There is also the question of who should pay for am employee to get a COVID vaccine. According to Segal, if the coming vaccine is not free, the law does not obligate employers to pay for the cost of a mandatory shot. Nonetheless, he argues they should do so, both because it is the ethical thing to do and since it will make it easier to ensure compliance. (Meanwhile, some politicians argue the U.S. should pay Americans $1,500 to get one).
For now though, any debate over whether companies should force employees to get the vaccine is premature, says Mark Navin, a professor of bioethics at Oakland University.
Navin points out that the initial phase of the vaccine deployment will prioritize populations like health workers and the elderly, and that it will be months before companies are in position to buy it for their employees—or force them to take it.
Navin also notes a distribution strategy for COVID vaccines will entail making a choice between limiting transmission or curtailing deaths. If the U.S. opts for the first option, then it makes sense to target younger people—including workers—who are more likely to spread COVID. But given the terrible fatality rate, Navin says the initial priority is likely to focus on distributing the vaccine in a way that saves lives.
“While vaccine mandates are an interesting question, it’s very premature to think about imposing any of these policies because we’re going to have a period of great scarcity into the spring and summer,” say Navin.
What about earlier pandemics?
The issue of mandatory vaccines is contentious, but the COVID outbreak is hardly the first time it’s come up. There have been skirmishes in courts across the country in recent years over whether employers can require workers to get a flu shot.
In one high profile case, a Massachusetts hospital terminated a Christian employee who claimed she would go to hell if she got a flu shot. The employee sued with the help of the Equal Employment Opportunity Commission, but a federal judge tossed the case earlier this year.
Meanwhile, the most famous Supreme Court case about vaccines dates from 1905, and involves a man who challenged an edict by city officials in Cambridge, MA to get a vaccine for smallpox or receive a $5 fine. The man claimed he and his son had an adverse reaction to earlier vaccines, but in a 7-2 decision in Jacobson v Massachusetts, the court sided with the city.
While the Jacobson case involved government officials, not private companies, many of the ethical issues—involving the safety of the general population versus the rights of the individual—are the same.
What is different, though, is how public discourse has shifted in favor of a patient’s autonomy. Prior to the 1970s, says Navin, government and medical elites could make sweeping health decisions with little or no consent from the people affected. He points to the mid-20th century when the U.S. faced a dangerous polio epidemic, and school boards and medical officials responded by ordering vaccines for children across the county.
Today, delivering a COVID vaccine is complicated by medical values that prioritize patients’ consent combined with the growth of squirrely conspiracy theories that reject long-held principles of immunization.
Navin also notes the legal climate has likely become more favorable to religious objections to vaccines as a result of Trump Administration policies, and a Supreme Court that has become more conservative.
All of this will complicate attempts by companies and other institutions to compel individuals to get a covid vaccine. According to Segal, the employment law attorney, businesses are likely to face lawsuits whatever they do—or don’t do.
“An employer will have to pick a risk over whether want to be sued by someone complaining about getting a vaccine—or by someone whose loved one has died because of the virus,” Segal says.
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