As companies start thinking about a possible return to their pre-coronavirus work spaces, a question arises: Can they require their employees to be vaccinated?
Generally, the law says they can. But all three coronavirus vaccines available in the country are currently under Emergency Use Authorization, which means they have been preliminarily, but not fully, approved by the U.S. Food and Drug Administration.
Final approval, or licensure, of the drugs will come when additional data is available from ongoing clinical trials, according to federal guidelines. But even then, it’s unclear whether employers will require shots.
According to a survey of more than 1,800 employer representatives across the country, less than 1 percent have mandated coronavirus vaccination so far, and 6 percent said they planned to once the vaccines gain full approval.
Forty-three percent said they had not decided against mandating coronavirus vaccines, while 48 percent said they had already decided they would not require them, survey results show. Nearly two-thirds of respondents expressed concern about the legal liability related to enforcing vaccination. More than half feared pushback, falling morale and perception of infringement on basic civil liberties.
The survey, released last month, was conducted by Littler Mendelson, an international law firm specializing in labor and employment litigation.
The Tampa Bay Times asked three experts specializing in health policy and employment law what this means for employees. All had slightly different answers but agreed that most businesses are unlikely to require coronavirus shots, opting to avoid pushback and legal issues by strongly encouraging them instead.
Robyn Powell, a professor of health law at Stetson University College of Law, said employers are just now beginning to explore their options for mandating vaccines. That’s mostly because vaccine supply has been so limited that shots aren’t available to most people yet.
As more doses are shipped to Florida, however, Powell said companies should have no issues requiring coronavirus vaccination, regardless of emergency use status. There’s no court ruling or law that would keep them from doing so, though without precedent, the issue is up for debate, she said.
“I wouldn’t say 100 percent either way until (the vaccines have) been fully authorized,” she added. “Certainly, some ethical and legal concerns could arise, and I could see some challenges being brought.”
Still, Powell said she expects to see more mandates as vaccine supply grows, particularly in health care jobs and schools, many of which already require vaccination against other viruses. The Occupational Safety and Health Administration gives employers the right to require the influenza vaccine, for example. Even more could come once the vaccines gain final approval, she said.
Jay Starkman, an employment attorney and CEO of human resources company Engage PEO, has a different outlook. He predicts few employers will opt to require coronavirus vaccines because it could negatively impact morale or be seen as an overreach by management.
“Employers hate requiring employees to do things that reach out past the employee-employer relationship,” he said. “I think there will be more encouragements than there will be mandates.”
For example, Starkman’s company is offering employees two paid days off for each dose of vaccine they receive, he said. He expects to see other companies implement similar incentives, including bonuses.
But as with any vaccines, employees who have legitimate medical or religious reasons for not wanting a coronavirus shot can file for exemption, as allowed by the Americans with Disabilities Act and Title VII of the Civil Rights Act.
Jay Wolfson, a professor of public health at the University of South Florida, said it’s uncommon for employers to “require clinical interventions.” It’s done in some food service and health jobs, where there is higher risk of contracting and spreading virus — and that would likely be the case with coronavirus vaccines, he said.
Wolfson said he doesn’t expect many employers to mandate the shots while the vaccines are still under emergency use. But there’s really no way to know for sure what is allowed or what companies will do, because there are no guidelines yet.
“I have physicians saying, ‘Do I have to give it to my employees? Can we require it?,’” Wolfson said. “And it really depends. ... We have to be patient and recognize that we don’t know enough to make formal policies.”
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