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Employers Can Require COVID Vaccines but It’s Complicated

As businesses begin to reopen, many are wondering if employers should require their staff to get vaccinated against the coronavirus to prevent future spread. But it’s difficult for businesses to navigate the legalities of requiring vaccines.

(TNS) — "Why can't they just make everyone get vaccinated?"

It's a question that is being asked locally with increasing volume, especially in the aftermath of a COVID-19 outbreak among unvaccinated Manatee County, Fla., employees last week that left two people dead and three others hospitalized.

If vaccines are effective at preventing the spread of the virus, and if society wants to return to normal and stay there, some vaccine advocates are asking why can't government agencies, schools and businesses require all their employees to receive a COVID-19 vaccination to return to work?

The short answer: Mandatory vaccine programs are generally legal, but the devil is in the details.

Employers have to navigate a tapestry of federal, state and local laws that regulate what they can and cannot make employees do. Employers with a unionized workforce have to hash out new policies with union leaders. Public entities are governed by elected officials, so politics comes into play.

And, despite rules and guidelines giving employers latitude when it comes to enacting COVID-19-related policies, no one knows how future courts will interpret that guidance.

The U.S. Equal Employment Opportunity Commission has issued guidance on how private businesses and government employers can implement COVID-19 safety regulations — including mandatory vaccination rules.

The EEOC is many organization's go-to source for this information, as it is responsible for enforcing an array of workplace anti-discrimination laws, including the Americans With Disabilities Act, Title VII of the Civil Rights Act and the Age Discrimination in Employment Act.

Using EEOC guidance, along with interviews with labor, health, privacy and education legal experts, the Herald-Tribune set out to address the question about mandatory vaccinations.

Can businesses or government make vaccines mandatory for employees?

It's a complicated question.

There are no laws that specifically prohibit businesses or government employers from making vaccines mandatory.

"The federal EEO laws do not prevent an employer from requiring all employees physically entering the workplace to be vaccinated for COVID-19," recent guidance from the EEOC states.

Simple, right? But what if an employee does not want to get vaccinated?

Here is where vaccine advocates' utopian vision of a fully vaccinated society collides with the real world.

Most employers must work with employees who cannot get vaccinated due to disabilities or because of a sincerely held religious belief, EEOC guidance states. That means employers must consider viable alternatives to vaccines for such employees, like wearing a mask, working remotely or moving to a socially-distanced workspace.

This process might be doable for a small office of employees, but for huge organizations the process gets more complicated, said Jennifer Fowler-Hermes, a board-certified labor lawyer with Williams Parker in Sarasota.

And employers can be legally liable if they botch any of the steps along the way.

"The larger the workforce, the more requests for accommodation and the more instances where a mistake can be made," Fowler-Hermes said. "It takes time and know-how to properly implement a mandatory vaccination program."

State public heath data indicates that roughly 55 percent of Manatee County residents have been vaccinated, as of June 17. If Manatee County government had that same vaccination rate among its roughly 1,900 employees, that would mean county officials would have to work out individual working arrangements for roughly 855 people.

It's a case-by-case basis, experts say, and issuing blanket rules could invite future lawsuits.

For example, if county officials just said, "Anyone who is not vaccinated must wear a mask," they risk liability for creating a rule that possibly exposes certain people's disabilities, which is a violation of the American with Disabilities Act.

The EEOC also cautions that employers who create a blanket policy need to be wary of making rules that disproportionately impact people of a specific race, color, religion, sex, or national origin, which would be a violation of Title VII of the Civil Rights Act.

And even if employers avoid complaints that their policy violated the Civil Rights Act, there may still be employees who bring ADA complaints that their employer didn't engage with them in the process of finding a reasonable accommodation.

"Often employers are caught in a Catch-22, without a clear answer available," Fowler-Hermes said. "Any solution to the issue comes with its own risks."

There are multiple reasons why an employee may be hesitant to get a vaccine.

Leaders at Sarasota Memorial Hospital have seen employees offer cultural and spiritual reasons or worry that they may have an allergic reaction to the vaccine, though incidences of that are rare.

Some women who are pregnant or wish to be pregnant worry that the vaccine could have an impact on their future fertility and their baby's health. Sarasota- Manatee obstetrician-gynecologists say that there is no evidence of that. In fact, the antibodies are passed from a vaccinated mother to the baby through her breast milk, effectively providing babies with protection from COVID-19.

More importantly, pregnant women are at a higher risk of having more severe effects from the virus, meaning getting them vaccinated is even more important.

Others worry that the vaccines cost money or require health insurance or documentation. That is not the case.

School districts have been the battleground for many COVID-19 debates, especially over closures and mask mandates. There have been whispers that mandatory vaccinations, at least for staff, may be the next skirmish.

Dan DeLeo, a board-certified business litigation attorney and partner with Shumaker, Loop and Kendrick LLP in Sarasota which represents the Sarasota County School District, said there has been definite talk among school district lawyers on the subject.

DeLeo said in addition to the legal hurdles school districts could face, the political nature of everything COVID-19 would make employee vaccination pushes more challenging.

"There are a lot of laws and regulations that govern this area, including, by the way, the First Amendment," DeLeo said. "You have people that truly have objections to vaccines... But (in schools) we've dealt with vaccines for a very long time. Every kid gets measles, mumps, rubella (vaccine) or they get a waiver."

"The primary difference is, MMR isn't politicized. This is all politicized," DeLeo said. "That's the primary difference, but to be fair it is also a new vaccine."

Sarasota School Board member Jane Goodwin, who is the president of the Florida School Boards Association, said she has not heard much chatter about mandatory vaccinations among board members statewide, but it is a topic that is ripe for discussion.

"We need to look at this at some point in time, yes," Goodwin said. "If we think we are over this, just look at Manatee."

Manatee County Administrator Scott Hopes, who is an epidemiologist and former Manatee County School Board member, said he has worked in environments where vaccines were mandatory and seen it be effective.

Still, he said, if he were advising government bodies on whether to implement a mandatory policy today, he would caution against it.

"Even though I know there is incredible information on the effectiveness of the vaccines, it's still a vaccine that is under emergency-use authorization," Hopes said. "It's kind of hard to mandate something like that."

The myriad legal and political landmines created by imposing a one-size-fits-all vaccination policy is why many local organizations have embraced a softer approach of encouraging, rather than requiring, vaccinations.

After Manatee's outbreak, the county held vaccination clinics where dozens of unvaccinated employees got the shot, and Hopes has been encouraging employees to participate all week.

"Get vaccinated," Hopes said Wednesday. "It works. It saves lives."

Outside of a pandemic, employers couldn't do something as simple as take an employees' temperature. But COVID-19 meets the CDC's standard of a "direct threat," which significantly changes things.

And despite all the hurdles, both the EEOC and state lawmakers have sought to strengthen the rights of employers to create policies that pre-pandemic could not have existed.

More than 150 employees of a Houston hospital were out of a job earlier this week, when a judge dismissed a lawsuit by employees who opposed the hospital's mandatory COVID-19 vaccine policy.

In March, Florida lawmakers passed legislation to protect businesses, government agencies and schools (among several entities) from COVID-19 related civil lawsuits.

The law came as organizations sought to shield themselves from liability on both ends — employers feared lawsuits if an employee or customer believed they caught COVID-19 at their establishment, but they also feared lawsuits alleging that they violated people's civil rights and privacy in enacting safety protocols.

"Absent at least gross negligence proven by clear and convincing evidence, the defendant is not liable for any act or omission relating to a COVID-19-related claim," the law states.

Experts say there is widespread belief that employers cannot ask employees about their vaccination status, but the EEOC has affirmed that employers can do this. Some states are already requiring proof of vaccination in order to take off the mask.

"The CDC, OSHA, and many state authorities agree that only those employees who are fully vaccinated can follow relaxed COVID-19 protocols, while those who are not fully vaccinated must continue to observe safety protocols such as mask wearing and social distancing," states a post from the national labor law firm Fisher Phillips, which has written extensively on the topic.

For all the hoops an employer may have to jump through, the EEOC is clear that employers can ask employees about vaccination status, they can require employees to be vaccinated to return to work, and they can require non-vaccinated employees to follow certain safety protocols.

There are ways that employers could ramp up vaccine requirements that will invite lawsuits, and there are ways they can do it that could minimize the risk of both COVID and of future legal liability.

The latter is possible, legal experts say, but it is far from easy.


(c)2021 Sarasota Herald-Tribune, Fla. Distributed by Tribune Content Agency, LLC.
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