Employers’ latest quandary: COVID-19 vaccines (can employers force employees to vaxx-up?)

Human Resource Executive ^ | September 16, 2020 | Carol Patton

[DoodleBob]

The eventual COVID-19 vaccine is primed to create a legal showdown for many employers.

According to a summer Gallup poll, 35% of Americans would not get a free, FDA-approved vaccine if it were available today.

This places companies in a predicament. How can they protect their employees if more than one-third are unwilling to take the vaccine?

The default rule in the American workplace—excluding employers in Montana and Puerto Rico—is to observe at-will employment, which generally means employees can be terminated for any reason if it’s not illegal or prohibited by employment contracts or collective bargaining agreements, says Alissa Kranza, attorney at Lieser Skaff Alexander law firm.

“Employers need to stay informed of the particular laws in their state and look at their particular employee contract, agreement or handbook to determine what specific situations will allow for termination,” she says. “Ultimately, those contracts will dictate whether or not termination is allowed for refusing a vaccine.”

Since the virus travels across state lines, there’s also been talk of Congress mandating a vaccine under the commerce clause, but Kranza believes this is unrealistic. She says employee rights would be at risk and it could trigger an avalanche of lawsuits.

Unfortunately, there isn’t a uniform practice for what HR can do. Every industry is different. So are their employees and jobs. She suggests that HR evaluate the makeup of its workforce and review current policies or processes for handling exemption requests. For those needing a religious exemption, it’s not the religion itself that matters, she explains, but the sincerity of the employee’s belief in those practices, even if they’re not widespread.

Employees may also refuse a vaccination under OSHA or ADA laws if it threatens to do more harm than good. Some may take biologics or drugs that weaken the immune system, for example, which increases their risk of catching the virus, becoming seriously ill or even dying.

In such scenarios, Kranza says, protected workers will require accommodations, such as working remotely, or being reassigned to other jobs where they can use a plexiglass screen, social distance, wash their hands or wear a mask.

Meanwhile, HR is better off making vaccines optional versus mandating them, which tends to sour or terminate employee relationships, she says, adding that HR can launch a pro-vaccine campaign. However, if someone has a bad reaction to the vaccine, that could result in a worker’s compensation claim.

Looking ahead, Kranza says, HR’s path is “clear as mud.”

“There are a lot of [people] who want to push this as though things are clear and employers can force everyone [to get vaccinated] and there won’t be any backlash,” she says. “We’re a big country and will get different reactions.”

[Varda]

Thank you, so many have so little understanding of what a constitutional right means.

I would not take the vaccine but any employer is within his rights to not employ me.

[Phillyred]

They have the right to make a potentialy disastrous decision. And if they screw with someone’s health by mandating this, they played their cards and had better be right that this vaccine wasn’t rushed.

[Svartalfiar]

Ya think employers are going to force people to take every known vaccine for every virus? Not going to happen.

I don't think many, if any, employers currently require employees to be vaccinated against anything, including measles, mumps, rubella, TB, polio, influenza, pneumococcus, meningococcus, plague, ebola, etc etc. The only ones who might, are ones sending employees overseas. But why would a coronavirus be any different? The only thing special about this one is the crazy amount of unfounded fear, and all the Democrat leadership (and Abbott...) shutting down their cities and States.

[Svartalfiar]

They’ve been working unsuccessfully for decades on vaccines for herpes, the common cold and a bunch of other diseases. Anyone who thinks that a vaccine for Corona virus will be ready in a few months or even a year, is delusional.

You do realize that about 30% of common colds are caused by coronaviri, right? It'll end up just like the flu shots for influenza:
There'll be a 40% chance that the powers that be correctly guess the strains coming out next year, so the shot will only be so effective. Maybe higher than influenza, since there's fewer human coronaviri strains, but the guess still isn't 100%. Less than 50% of the populace will get them, and you'll probably still get sick at some point despite getting the shot. Of course, all the 'cases' and deaths will be combined into the normal CDC-guesstimated "flu deaths" count, but with a slightly higher multiplier than the flu currently gets.