Businesses can require employees to get vaccinated against coronavirus

Posted December 2, 2020 4:40 p.m. EST
Updated December 16, 2020 3:41 p.m. EST

— Even with widespread hesitancy over a pending coronavirus vaccine because of the speed at which it's been developed and tested, many Americans might wind up being forced to get vaccinated by their employers.

"It’s legal for the government, under certain circumstances, to require vaccines," said Scott Holmes, associate clinical professor of law at North Carolina Central University. “Concerns around a person’s liberty interest in being protected from being forced to do medical procedures, sometimes that can bend to a general need for public safety."

Some businesses, for example, already make an annual flu shot part of the terms of employment for their workers.

"Some things they need to think about: Is it necessary for their business? Is it important to protect their employees and their customers? Also, is the vaccination safe?" Holmes said. "As long as there are questions about the safety of the vaccine, employers might be reluctant to require a vaccine until it’s proven that it’s safe."

"A lot of this is going to depend on how available the vaccine is and how effective the vaccine is and, third, how safe it is," agreed Dan Bowling, a labor law expert at Duke University School of Law.

Noting those questions, neither UNC Health, Duke Health nor WakeMed are requiring their employees to get vaccinated against coronavirus right now – even though frontline health care workers are targeted as one of the first groups to be vaccinated.

"Given the limited experience with the vaccine, there are no current plans to make the COVID vaccine mandatory for UNC Health employees," hospital system officials said in a statement.

“Duke Health is not requiring any staff members to get the COVID vaccine. Annual flu vaccination is a condition of employment for all Duke Health employees," officials said in a statement.

Once safety and availability concerns have been addressed, both Holmes and Bowling said they expect companies, especially those more vulnerable to an outbreak, will begin to require the vaccine for workers.

"The employer is kind of caught in this Catch-22 situation where, if they don’t require the vaccine and, for some reason, their customers get injured or harmed, that could subject an employer to liability for not having the vaccine," Holmes said.

But workers could still use medical or religious reasons to avoid getting the vaccine.

"An employer might need to consider reasonable accommodations for employees who either have a religious objection for some reason for taking the vaccine or they may have a medical problem that makes it unsafe," Holmes said. "But if the accommodation is too costly or too risky to employees or customers, then employers may still be justified in requiring everyone to get a vaccine."

The Centers for Disease Control and Prevention and the Equal Employment Opportunity Commission are drafting guidance on the circumstances under which employers can mandate vaccines.

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