As many of us are heading back to the office and we wind down from this historic pandemic, a lot of companies are requiring their employees to become vaccinated in order to come back to work. The short answer to this question is, yes, companies can legally require their employees to become vaccinated in order go back to the workplace. Recent guidance from the U.S. Equal Employment Opportunity Commission which is the federal agency that oversees workplace compliance establishes this requirement. www.eeoc.gov/coronavirus. Employers can, in fact, require employees to get a Covid-19 vaccine and prevent them from coming to the workplace if they refuse to be vaccinated, the federal government said in guidelines issued recently.
Public health experts believe employers will play a significant role in vaccinating enough people to reach” herd immunity” and help end a pandemic that has tragically killed more than 500,000 Americans. Widespread covid vaccinations will prevent people from dying and restart an economy that has taken the jobs of many Americans in the past year. Employers had been waiting for guidance from the U.S. Equal Employment Opportunity Commission, the agency that also enforces laws against workplace discrimination, because requiring employees be tested for the coronavirus touches on thorny medical and privacy issues covered by the Americans with Disabilities Act of 1990.
Just like companies can require employees to get drug tested, federal laws do not prevent companies from requiring employees to provide proof of vaccinations. It should be noted that companies are required to keep this information confidential. However, just like requiring vaccines for children to go to school, there is an exception to this requirement. If an employee has sincerely held religious beliefs or a disability that prevents them from becoming vaccinated, they may be entitled to special accommodation under the Americans with Disabilities Act. These accommodations could include requiring the employees to wear facemasks while at work, social distance from others, and get frequent COVID-19 tests or the company can allow the employee to work remotely.
Government entities such as schools in the military can require vaccination for entry. This practice follows the Supreme Court case of Johnson vs Massachusetts 197 U.S. 11, 25 S. Ct. 358 (1905) that allowed the states to require people to be vaccinated against smallpox. The decision paved the way for public schools to require vaccinations from students. In that case, Justice John Marshall Harlan delivered the decision for a 7–2 majority that the Massachusetts law did not violate the Fourteenth Amendment. The Court stated that “in every well-ordered society charged with the duty of conserving the safety of its members the rights of the individual in respect of his liberty may at times, under the pressure of great dangers, be subjected to such restraint, to be enforced by reasonable regulations, as the safety of the general public may demand” and that “real liberty for all could not exist under the operation of a principle which recognizes the right of each individual person to use his own [liberty], whether in respect of his person or his property, regardless of the injury that may be done to others.”
The Court went on to hold that “mandatory vaccinations are neither arbitrary nor oppressive so long as they do not “go so far beyond what was reasonably required for the safety of the public.” Massachusetts was one of eleven states that required smallpox vaccines for all of its residents at the time. The Court found that smallpox was “prevalent and increasing in Cambridge” at the time and the regulation in question was “necessary in order to protect the public health and secure the public safety” Jacobson argued that he had a bad reaction to vaccines in his home country of Sweden and that he should be medically exempted from being vaccinated. The state refused his request and fined him five dollars which is the equivalent of $150.00 today. Jacobsen had offered proof that there was disagreement in the medical community as to whether the smallpox vaccine would actually spread of the disease. However, the Court found that it was left to the legislature, not the courts, to determine which of the “two modes was likely to be the most effective for the protection of the public against disease.”
I have been asked if the HIPPA statute which is the Health Insurance Portability and Accountability Act has protections for patients to keep their vaccination records and health information confidential. It is important to note that that act applies to healthcare providers and not employers.
Despite re-openings and push to get America vaccinated, some employers are still reluctant to require vaccinations. A recent survey conducted by the Rockefeller foundation and Arizona State University of more than 1,300 medium and large companies in the United States and the United Kingdom found that more than half said they would require employees to show proof of vaccination. The survey showed that nine out of ten said they plan to encourage or require their employees to become vaccinated. Not all companies are requiring their employee’s to be vaccinated.
Some companies are providing incentives for their employees to get vaccinated. For example, Target is providing up to four hours of paid leave time for all of their employees to get vaccinated and covering their transportation costs to and from their appointments. The supermarket giant Kroger is giving each employee $100 if they provide proof of vaccination. Some employers, however, are not quite as bold. For example, Delta Airlines is not requiring vaccination of its current employees only for new hires. Likewise United Airlines said it will require newly hired employees to provide proof of vaccination and is providing three days of vacation time to all flight attendants who receive at least one dose of the vaccine. But they are not requiring current employees to become vaccinated.
The issue of vaccines raises political debate in this country and there are many people who are vehemently opposed to vaccines and likewise many people are just as strongly in favor of vaccines. The use of vaccines should not be a political issue. It is an issue of public health and that is how the law addresses this matter. Laws governing vaccines are part of the public emergency doctrines and put in place to protect citizens from the wide spread of disease. Many of our grandparents and great grandparents lived through the polio epidemic as well as the Spanish flu epidemic. This is the first pandemic of most of our lifetimes, and if nothing else has shown how life can change so rapidly from disease and pathogen ‘s that we can’t even see. It is my hope and goal that we will all do our best to keep each other safe whether from vaccine or social distance or wearing a face mask, it is all of our duty to protect our neighbors and do the best that we can to stay healthy and keep our friends and family safe.
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