As scientists work around the clock to create a vaccine for Covid, employers across the U.S. are dealing with another issue – will they be able to require employees to get it once it’s available? The answer may not be so simple.
Aaron Goldstein is a labor and employment partner at the international law firm Dorsey & Whitney. Goldstein provides litigation expertise and advice as employers tackle various issues surrounding Covid. Lately, he says he’s been fielding calls from employers who are trying to plan ahead when a vaccine does become available.
“Like many employment related questions, the answer to whether employers can require vaccinations is “yes” in the absence of any complicating factors, but “no” in many particular cases,” Goldstein says.
“The Occupational Safety and Health Administration (OSHA) has stated that employers can require employees to be vaccinated against the flu, but that employees who believe they have a medical condition that makes getting vaccinated dangerous may be able to refuse,” Goldstein says.
“As with many other Covid-19 related issues, vaccination is likely to be contentious as a social/political issue, regardless of employers’ legal rights and obligations. Everything from mask wearing to required social distancing has become politically polarized and it is hard to imagine that something as physically invasive as vaccination won’t be similarly contentious. Employers will need to balance the benefits of required vaccination, which could include making customers feel safer and preventing location closures and individual absences, against the costs, which could include employees quitting, lower morale, and navigating disability and religious accommodation claims, which may be genuine or may be made in bad faith,” Goldstein says.
“Strongly encouraging vaccination is likely a good minimum for employers to consider. Employers that wish to make vaccination mandatory should consider offering employees who refuse the ability to work remotely and be mindful of legal protections based upon disability, religious belief, and whistleblower status,” Goldstein says.