Frontline health care workers are receiving the first doses of the new COVID-19 vaccine this week, followed by vulnerable communities such as nursing home residents and, eventually, the general public. As the vaccine becomes available to more people, some may be wondering whether their employers can require them to take the injection.
The short answer is: yes, maybe.
"If the employer has a policy that mandates the employee get a vaccine, and then they develop an allergic reaction or some sort of medical condition, the worker might be able to bring a worker's compensation [claim] against that employer," Marcelo Dieguez, an employment law attorney, told NBC7 in San Diego.
If an employee can sue in protest, is it really a legal mandate? Why so ambiguous?
EMERGENCY USE AUTHORIZATION
For one thing, there is no precedent for requiring employees to take a vaccine released under an emergency use authorization, according to Dorit Reiss, a professor of law at the University of California Hastings and a member of The Vaccine Working Group on Ethics and Policy.
Vaccines are granted formal approval by the federal Food and Drug Administration, but under an emergency use authorization, that process is expedited so it can be distributed to the public faster, say, during a public health crisis such as the coronavirus pandemic.
"This is new territory," Reiss told our local news and culture show Take Two. "We have never had an [emergency use authorization] used to give a vaccine to the general population."
New territory means there is room for legal interpretations.
Both the FDA and the Centers for Disease Control have said in the past that an emergency use authorization does not allow for vaccine mandates, according to Reiss.
However, Reiss said she believes the language of the law does allow for them — with several important caveats. First, the language of the emergency use authorization law spells out that people must have the option to refuse the vaccine, be informed of the consequences of doing so, and be offered alternatives.
For businesses with unionized workforces, collective bargaining agreements may make negotiations necessary before a vaccine mandate could go into effect. Finally, the Americans with Disabilities Act and the Civil Rights Act of 1964 — especially in terms of religious exemptions — could give employees the right to refuse or to ask for alternative accommodations, such as working from home.
BUT SHOULD THEY?
Even if employers could issue vaccine mandates, the question remains whether they should. A recent survey from the Associated Press and the NORC Center for Public Affairs Research showed almost half of Americans have some level of hesitancy about the new COVID-19 vaccines. According to Reiss, it's important to recognize that mandates are not the only solution for making sure workplaces are safe:
"Mandates can be a really important additional tool, but they're not a solution for high levels of concern or mistrust, by themselves. The other thing to remember is that [the] legal framework is one thing, the question of whether it is a good idea to mandate is another. If you know that 40% of your workforce are very scared of the vaccine, that may be a reason not to mandate."
For now, there remains a long road ahead before the general public will have access to a COVID-19 vaccine. Until then, masks, sanitation and work-from-home situations will likely continue.
Brian Frank contributed to this story.
This report is reprinted with permission from Southern California Public Radio.
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