CAN EMPLOYERS ORDER WORKERS TO GET A COVID-19 VACCINE? [Updated]

This post was originally published on the Proactive Talent blog around the Thanksgiving holidays. Updates related to this article are cited below.

The Thanksgiving holidays are almost upon us and as of Saturday, November 21, 2020, according to CNBC…

The United States reported more than 195,500 new cases of the coronavirus on Friday, a record-high spike less than a week before Thanksgiving, which public health officials are warning could further exacerbate the outbreak.

Friday’s jump of nearly 200,000 cases brings the seven-day average of new cases up over 167,600, an increase of nearly 20% compared with a week ago, according to a CNBC analysis of data compiled by Johns Hopkins University. The seven-day average of new cases are up by at least 5% week over week in 43 states and the District of Columbia, Hopkins data shows.

There are lots of health warnings being circulated on TV, radio and the internet that mirror what’s being said by Denver Health

Eventually Thanksgiving, Christmas, Festivus, Kwanzaa and all other December holidays will be over. 2021 will emerge and with it, a return to the office. At least, some people think so and have made huge investments in returning to the office. There are also some entities encouraging  severe penalties for those who do not abide by vaccination mandates. 

Moderna Therapeutics, a pharmaceutical company in the running to develop a vaccine to suppress COVID-19, reported promising clinical results of an efficacy rate of 94.5 percent following phase 3 trials. Check out this report from CBS News.

This is good news, indeed. And while there are still challenges to be addressed with these vaccines like being able to store them at very low temperatures and shipping and storing such fragile cargos for worldwide distribution, there is a lot more optimism in the marketplace for a return to some sort of normalcy. Case in point, PitchBook is a financial data and software company headquartered in Seattle, Wa.  They recently published a report on how tech startups pivot to help offices reopen. Let me share some of what they said from their summary.

As the COVID-19 pandemic continues to necessitate adaptive work environments, more employers are exploring how to create a safe and effective office space for when employees return. Contact-tracing technologies, which identify, assess, and manage people who have been exposed to an infectious disease to break the train of transmission, allow employers to more easily track potential risk from COVID-19 and provide a more comfortable office experience for employees.

And here are some of the companies cited in the report:

  • Envoy is an office management platform primarily known for its visitor tracking and conference room booking solutions. The company has rolled out Envoy Protect, a system to track which employees are sick, and manage crowded workspaces.
  • CareValidate creates proximity tracking for senior homes but has expanded its workplace offerings to include daily mobile health screenings, badge tracking, and at-home testing apps.
  • Hipla Technologies is known for its visitor management system, including touchless office access. In response to the pandemic, it rolled out Contatrack, which uses video to monitor offices, schools, and warehouses to track social distancing and mask wearing.

Hmm… Technology to track sick employees, video to monitor whether or not you are wearing a mask or social distancing? Sounds a bit draconian to me. Still, it’s nowhere near as concerning  as what’s going on in Australia. Here is a headline from the DailyMail [Aug 2020] – “No jab, no JOB: Bosses demand the right to sack their workers if they refuse to get a coronavirus vaccine when one is available in Australia – and powerful unions look set to back them” Here is a quote from that article… (And for those who don’t know, sacking a worker is another way of saying firing a worker.) 

Small businesses are pushing for the right to sack staff members who refuse to get a COVID-19 vaccine when one becomes available in Australia.

Prime Minister Scott Morrison this week announced the government had signed a memorandum of understanding with pharmaceutical company AstraZeneca Australia to secure the promising Oxford University vaccine candidate.

The government hopes the coronavirus vaccine will reach Australia by early next year and wants 95 per cent of people to get the jab.

Mr Morrison said he would like to make the vaccine ‘as mandatory as possible’ but does not have the power to make it compulsory.

The Council of Small Business Organisations Australia has since proposed law changes that would give employers the power to sack workers who refuse the jab.

‘If one of my staff members says, “no, I’m against it”, then I’m going to have to say, I’m sorry then, you are a threat to my business’,’ Council CEO Peter Strong told 7News.

‘If you don’t sack them, you don’t have a business, especially if you’re in a high contact area where you’ve got a lot of customers. It’s not discrimination, that’s a business decision.’

So many concerns came to mind after reading that report. Among them…

  •  If a company is in an area where COVID has increased substantially, does it make sense not to have a vaccination mandate?
  • If a company requires their employees to get vaccinated, can employers be held liable if something goes wrong with the vaccine?
  • What rights do people have over their own healthcare choices? Does COVID-19 overturn the argument – my body, my choice?
  • If so many people refuse to take the vaccine then, some businesses might not be able to operate.
  • How can businesses that require vaccinations from their employees compete with competitors who do not require vaccinations?

Is what’s happening in Australia a preview of things coming to America? It may very well be. According to attorney Lindsay Ryan, there is already a pathway for employers to mandate vaccination as a work requirement. Listen to her discussion with Yahoo Finance below. 

I am very curious to hear what employers and workers think about this. How do you think your company will react to this issue? Please leave a comment below. 

Jim 


Updated Info:


EEOC Guidance on COVID-19 Vaccinations: What Now for Employers?

On December 16, 2020, the Equal Employment Opportunity Commission (EEOC) issued guidance debunking prevailing wisdom and paving the way for employer-mandated vaccines. The EEOC dealt squarely with the issue of whether vaccines are “medical examinations” under the ADA and also addressed the intersection and applicability of various laws implicated by the availability of COVID-19 vaccinations, including the ADA, the Genetic Information Nondiscrimination Act (GINA) and Title VII of the Civil Rights Act of 1964 (and, specifically, religious accommodation thereunder). Most notably, the EEOC posited that the administration of a COVID-19 vaccine to an employee by an employer, or by a third-party administrator on behalf of the employer, is not a “medical examination” under the ADA.

Global Solutions, Episode 22: Key Considerations For Employers As The COVID-19 Vaccines Become Available (Podcast) – Coronavirus (COVID-19) – Worldwide

In this episode of our Global Solutions podcast series, Rebecca Emery and Katie Krouse discuss the distribution of the COVID-19 vaccine in the United States and across Europe. The speakers address key considerations for employers, including vaccination policies, responding to employee concerns regarding the COVID-19 vaccine, and access to employee health information.