Employers Could Mandate a COVID-19 Vaccine, but are Unlikely to Do So

December 8, 2020

Private U.S. companies have the right under the law to require employees to get vaccinated against COVID-19, but are unlikely to do so because of the risks of legal and cultural backlash, experts said.

Companies are still in the early stages of navigating access and distribution of vaccines against the disease caused by the novel coronavirus, but inoculation is considered the key to safely resume operations at crowded warehouses, factory lines and on sales floors.

“Companies have every good reason to get all of their employees vaccinated and also have an obligation to keep all employees and customers safe,” said Lawrence Gostin, a global health law professor at Georgetown University.

Gostin and five other health law experts said private companies in the United States have broad liberties to set health and safety standards, which would allow them to mandate vaccinations as a condition of employment with some exceptions.

The Equal Employment Opportunity Commission in May said employers were allowed to compel employees to get a coronavirus test before allowing them to return to work, a decision that some experts said might be extended to vaccine mandates.

But Robert Field, a law and public health professor at Drexel University, said companies considering mandates should wait for vaccines to undergo a full-fledged regulatory review process.

“Employers are on shakier grounds because of the emergency use authorization,” Field said, adding there was no precedent for vaccine mandates during that phase.

U.S. courts that have ruled on lawsuits by healthcare workers opposing have largely sided with hospitals as long as they provided reasonable exemption policies, court records showed.

Regulatory Patchwork

In Europe, companies face a patchwork of national vaccine regulation, with some countries mandating childhood vaccines, but European employers overall are unlikely to be able to mandate vaccination for staff, experts said.

In France, which in 2018 began mandating some childhood vaccines, some vaccinations are obligatory for professionals in the social and healthcare industry. President Emmanuel Macron has said a coronavirus vaccine will not be mandatory.

In Germany currently, only measles vaccines are mandatory for some employees and companies have no sufficient legal basis to order COVID-19 vaccination, said Pauline Moritz, a Frankfurt-based employment law attorney.

And in the UK, the government has no legal power to compel vaccination and employers attempting to mandate vaccines would likely confront human rights concerns, employment lawyers at Morgan Lewis wrote in a blog post. https://bit.ly/3lDbG9W

U.S. agencies to date have not weighed in on COVID-19 vaccine mandates, but the Occupational Safety and Health Administration (OSHA) in the past has said employers have the right to mandate vaccines.

OSHA referred a request for comment to the U.S. Department of Health and Human Services, which did not respond.

Vaccine Mandates Unlikely

U.S. companies so far are shying away from discussing vaccine mandates, ahead of formal approval for a vaccine by the U.S. Food and Drug Administration.

Ford Motor Co, which has ordered a dozen ultra-cold freezers to distribute vaccines to employees, said they would be made available on a voluntary basis.

A spokeswoman for Kellogg Co said the company was working with a medical expert and industry trade associations to make vaccines available to employees on a voluntary basis, in compliance with local and regional regulations.

“Companies could theoretically issue a mandate, but in the current political climate it is very unlikely they will do so,” said Peter Meyers, a law professor at George Washington University Law School. “Americans tend to shy away from mandates.”

Surveys have shown many Americans have safety concerns about a COVID vaccine, with nearly half of the 10,000 respondents polled in a September Pew research survey saying they would definitely or probably not get the vaccine.

Some experts said any vaccine mandates would prompt litigation. Cases alleging infringement on religious freedom could make it to a more conservative U.S. Supreme Court.

Vaccine mandates are common in the U.S. healthcare industry, where many hospitals require staff to take annual flu shots and all U.S. states mandate vaccines for school children.

Employees and parents can object to vaccines largely on two grounds: medical conditions that contraindicate vaccination or – depending on the U.S. state – religious or personal beliefs.

Some union contracts with individual employers, particularly in the healthcare industry, also prevent mandatory vaccines.

If an employee rejects vaccination on religious grounds, an employer has to make a reasonable effort to accommodate the worker, such as offering a transfer to a different department with fewer personal interactions or mandating masks, said Dorit Rubinstein Reiss, a law professor at UC Hastings.

So far two companies, Pfizer Inc and Moderna Inc , have asked the U.S. Food and Drug Administration for emergency use authorization of their vaccine candidates.

The chief adviser of the U.S. government’s COVID-19 vaccine program said on Tuesday that 20 million people could be vaccinated by the end of 2020, and that by the middle of 2021 most Americans will have access to highly effective vaccines.

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