The Food and Drug Administration approved the use of a COVID-19 vaccine developed by Pfizer and BioNTech Friday evening.

Yes, employers can require employees to get the COVID-19 vaccine (and fire those who refuse), but few are expected to.

“Under the law, an employer can force an employee to get vaccinated, and if they don’t, fire them,” said Rogge Dunn, a Dallas labor and employment attorney.

The idea here, however, is to keep the workplace safe. Anxiety is already high. Forcing employees to decide between getting vaccinated or losing their job could hurt morale even more. “Employers will have to decide whether they want to put employees into a position to make that call,” said Paul Starkman, an attorney with Clark Hill who represents management in employment cases.

As a general rule, employers can make getting inoculated a requirement as a condition of employment as long as it is considered job related and a business necessity, legal experts say.

“It really is nuanced. It really does depend. You have to know your workforce. You have to know your clientele,” said Bob Harris, a labor and employment attorney with the Columbus law firm of Vorys, Sater, Seymour and Pease.

Polls show a substantial minority are weary of the vaccine since it was developed so quickly. Employers want employees coming back to work, but they do not want them scared to do so.

“Until we know what the vaccine looks like, most people will tread with some caution,” Harris said.

Different industries are expected to respond differently to requiring vaccination depending on the business. Hospital workers and nursing homes, for instance, are a higher priority for a vaccine than those who have spent the pandemic working from home.

The vaccine is not federally mandated at this time. It is currently up to employers whether they will require it. Even then, employers must take into consideration exceptions to the vaccine for medical and religious reasons.

The National Association of Manufacturers says it will support any company that chooses to mandate the vaccine.

“Vaccines are safe. Vaccines work. Vaccines are needed to protect our essential personnel, including manufacturing workers,” Jay Timmons said, the organization’s president and CEO.

The approval of the COVID-19 vaccine is a huge turning point for this pandemic that has drastically changed the way employers care for and work with their employees. With so many Americans skeptical to get vaccinated, it is a difficult decision for employers to make: to require the vaccine or not.

Resourcing Edge is here to partner with you and relieve any headaches this decision may cause. Check out the Q&A below and contact our HR experts today for additional information.

Q. Is it legal for employers to mandate vaccination and fire employees who do not comply?

A. Employers can justify requiring the vaccine by making the case that it is “job related and consistent with business necessity,” due to the dangers of COVID-19. This is the standard under the Americans with Disabilities Act which allows employers to make medical inquiries and administer medical tests.

Federal agencies have not issued specific guidelines for employers just yet, however, it is suggested since employers were able to require COVID-19 screening tests, they will be able to do so with the vaccine as well.

Q. What are the exceptions?

A. Employers are required by federal law to provide accommodations for employees who can show a disability or sincerely held religious belief, which would prevent them from getting vaccinated.

It is possible courts will prioritize the safety of the workplace rather than an individual’s rights. An employer’s ability to offer reasonable accommodations can determine whether it makes sense to require vaccination, said Nathaniel Glasser, an attorney with labor and employment firm Epstein Becker Green, which represents management.

Q. Is it different for public employers v. private employers?

A. It would be more justified to mandate vaccination among public employees. Especially those who have high contact with the public, such as police officers.

Public employees have constitutional rights in employment that private sector employees do not. Private sector employees are employed at will and can be fired for any reason (so long as it does not violate civil rights laws, anti-discrimination laws, or a contract).

Q. What if employees believe the vaccine is unsafe?

A. Many people are concerned with the safety of the vaccine given how quickly it was developed and the limited testing on certain populations, including pregnant women. An ABCNews/Ipsos poll found 80% of Americans plan to get the vaccine. Other surveys show only about half of Americans are interested in getting it.

Due to safety concerns, employees could resist vaccination and claim protection under the National Labor Relations Act, which protects the rights of employees to engage in “concerted activity” regarding employment conditions.

If enough people seek exemptions, it could dilute the effectiveness of a vaccination program and make a mandate doubtful.

Q. Can employers be held liable if they do not require their workforce to be vaccinated and people get sick?

A. Not at this time. Experts do not anticipate it will be required for employers to mandate the vaccination.

Q. How can employers encourage employees to get vaccinated without mandating it?

A. The primary strategy should be to use educational campaigns to communicate the benefits of the vaccine. Employers should try to avoid suggesting the vaccine is undesirable or dangerous. Some employers are debating whether they should offer bonuses to employees who get vaccinated.

 

Jacquelynn Entwistle

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