1. Can U.S. employers require vaccinations?
In general, yes. In April, Houston Methodist became the first U.S. hospital system to announce a staff-wide Covid vaccination mandate. Such rules remain relatively rare, but Morgan Stanley said in June that it plans to bar employees who aren’t vaccinated against Covid from entering its offices in the New York area, as a growing number of major Wall Street firms delay the return of staff who aren’t protected against Covid. Most nonunion companies have relatively wide latitude to create such requirements largely because employment relationships are presumed to be “at-will” in nearly every state. Companies can fire at-will workers for any legal reason, which could include refusal to comply with a vaccine mandate. In addition, employers have a legal duty to provide a safe and healthy workplace. Even before the pandemic, many health-care facilities required workers to get inoculated against certain diseases, sometimes in response to state provisions.
2. What objections can workers raise?
• To start with, rules related to the Food and Drug Administration’s sped-up procedure for authorizing the Covid vaccines amid a public health emergency state that individuals have the option to refuse the shots. That gives some workers an avenue to sue over vaccine mandates as long as the FDA hasn’t given the shots formal approval, according to management lawyers. However, in mid-June, a Texas federal judge tossed out a lawsuit on this basis against Houston Methodist Hospital, ruling that the language on emergency-use products applies to powers and obligations of the head of the U.S. Department of Health and Human Services, not a private employer. The decision will likely give other courts more confidence to reject similar lawsuits against workplace requirements, legal observers said.
• The Americans with Disabilities Act allows a worker to request an exemption from a vaccine mandate if she has a disability that’s covered by the law. In such a case, the employer must communicate with the worker to determine whether an exemption is a reasonable accommodation given her disability and job responsibilities -- and isn’t an undue burden for the employer. Failing to engage in that process or provide a reasonable accommodation could be grounds for a lawsuit. A worker with a health condition that compromises her immune system has a good chance of prevailing on a claim if she has a doctor’s advice that she should avoid a vaccine. An employer would need to show that allowing a worker to remain unvaccinated would cause an undue burden or pose a direct threat in the workplace, which would be difficult to do if there are alternatives available such as working from home or moving to an area segregated from coworkers. The Equal Employment Opportunity Commission, which enforces federal laws against job discrimination, has said that ADA protections apply to Covid vaccines.
• Title VII of the 1964 Civil Rights Act prohibits workplace discrimination based on religion, giving workers the right to seek an exception to a vaccination mandate based on religious beliefs. The EEOC defines religion beyond membership in a church or belief in God. Religion for the purposes of federal anti-discrimination law covers strongly and sincerely held moral or ethical beliefs, according to the agency. But employers can deny religious accommodations if they would create an undue burden.
3. Are employer mandates likely to become common?
Probably not. About 72% of employers responding to a May survey conducted by advisory and risk management company Willis Towers Watson said they don’t plan to require vaccinations to return to the workplace. Instead, most will require that unvaccinated staff wear masks indoors. More employers -- particularly those in health care, emergency services and education -- will probably impose mandates if the vaccines get full FDA approval, according to management lawyers. Makers of the first two inoculations authorized for emergency use in the U.S., one by Pfizer Inc. and BioNTech SE and another by Moderna Inc., asked for full regulatory approval in May and June, respectively.
4. Can U.S. government authorities require people to get vaccinated against Covid?
President Joe Biden said early on he didn’t support making vaccinations mandatory, and in any case, the federal government’s power to impose vaccine requirements is limited. However, states clearly have that authority, and they’ve used it in other cases. Mandates don’t mean forced vaccinations, but rather penalties or denial of services for those who don’t get them. Indonesia, which in February required those eligible for Covid vaccination to take it, penalizes refusers by levying fines and denying government services and assistance. Philippine President Rodrigo Duterte threatened to jail those who refuse Covid shots, but his justice secretary countered that no law compels citizens to get vaccinated. A New York state lawmaker proposed a bill in early December that would require Covid vaccines for all residents who can safely take them should public health officials determine that an insufficient percentage of people are getting immunized. It provides no penalty for noncompliance. But the bill has yet to move out of committee, while a competing measure would prohibit New York from mandating immunization, as would proposed laws in a few other states.
5. What are the precedents for government mandates?
At the turn of the 20th century, the city of Cambridge, Massachusetts mandated that residents get a smallpox vaccination. Pastor Henning Jacobson rejected both the shot and the obligation to pay a $5 fine, appealed all the way to the Supreme Court, and lost in a landmark 1905 ruling. More recently, New York City ordered people in a part of the Brooklyn borough to be vaccinated against measles or pay a $1,000 fine after an outbreak there in 2019. On a standing basis, all 50 U.S. states require specific vaccines for students to attend school, with each setting its own mandate for inoculations against diseases such as hepatitis B, mumps and chickenpox. Medical exemptions are universally granted, 45 states allow unvaccinated students to attend school if their parents object to immunization for religious reasons, and 15 states permit philosophical objections. States also set out vaccine requirements for college and university students, and many of them have mandates for workers and patients in certain health-care facilities, notably hospitals and nursing homes.
6. Do other countries use vaccine mandates?
According to a study published in October in the journal Vaccine, of the 193 members of the United Nations, more than 100 have nationwide mandates requiring one or more vaccines. Of those, 62 impose a penalty for noncompliance. The most common penalties are fines and denial of school enrollment for children who aren’t vaccinated. A few countries, including Canada, are like the U.S. in that they have regional rather than national mandates.
7. Are there likely to be Covid vaccine mandates for U.S. schoolchildren?
That’s only just becoming a matter of discussion. At first, none of the Covid vaccines distributed in the U.S. were cleared for people younger than 16 because they hadn’t been proved safe and effective in that group. However, in mid-May, regulators authorized the Pfizer-BioNTech vaccine for children as young as 12. Some legal experts think states are unlikely to add Covid vaccines to school requirements as long as they are authorized by regulators only on an emergency basis; the initial request for full approval of Pfizer-BioNTech’s vaccine covers use only in people 16 and older. At the same time, mandates are picking up steam in higher education, with more than 400 colleges and universities in the U.S. announcing vaccine requirements for students.
8. Are vaccine mandates effective?
There are lively debates among public health authorities and academics about the efficacy of vaccine mandates. Supporters cite studies showing that stricter rules on inoculating schoolchildren lead to lower rates of vaccine-preventable diseases. Most of the data, however, relates to children, whereas a Covid vaccination campaign needs to reach a significant portion of adults. Some health specialists argue that mandates -- especially if they’re imposed by governments -- will only boost resistance to taking vaccines and provide ammunition for anti-vaccine activists at the political fringe.
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