The recent emergency authorization by the FDA for two vaccines, Pfizer-BioNTech and Moderna, means this could be the beginning of the end for this devastating pandemic that has spread all over the world. Since the first vaccine got its approval, we are witnessing an intensive and focused effort to vaccinate and protect everyone across the country as soon as possible.
Vaccine Could Bring Relief to Lockdown Restrictions
There is a widespread belief that a rapid vaccination drive could help ease the severe lockdown restrictions in certain states and restart an acutely distressed economy. As the provisions of the CARES Act lapse soon, about 12 million people are at risk of losing unemployment benefits. Outstanding student loans and federal protection for renters face a similar fate because of the delay of this relief package.
The Viewpoint of the Anti-Vaxxers
Over the past few months as the race for the vaccine was heating up, there has been a lot of debate on whether the vaccine should be mandatory. For every voice in favor of the vaccine, there have been voices of people who want to exercise their free will and an option to say no to it.
The CDC says there is a substantial number of naysayers – people with apprehensions about vaccine safety. According to a recent Pew Research Center survey, almost 40 percent of the people are either completely against or unsure about getting vaccinated.
Is Getting Vaccinated Going to be Mandatory?
Setting a legal precedent with its 2009 pandemic preparedness guidelines, the Equal Employment Opportunity Commission (EEOC) said that employers can mandate their employees to get vaccinations against the flu. However, US law has provisions for certain exceptions where an employee can refuse vaccination without the fear of losing their job.
The Americans with Disabilities Act (ADA) grants the first exception under which an employer needs to provide acceptable accommodations to employees if they are not able to take the vaccine because of certain medical conditions.
Title VII of the Civil Rights Act of 1964 covers one more exception. According to Title VII, employees can refuse a vaccination based on their sincerely held religious beliefs.
Can I File a Personal Injury Claim Because of Injury from a Mandatory Vaccine?
A mandatory vaccination, if it causes any adverse effects, increases the risk of personal injury claims against employers. However, the conventional legal procedures make it difficult to seek claims if there is no foreseeable harm from the vaccine and no clear evidence of negligence.
The chances of a personal injury claim being successful are low if the employer did not administer the vaccine, even if they mandated it for the employee. And this is especially true if the employer does not make the vaccination mandatory for those workers who have qualified exemptions. An employer must have justifiable grounds to refuse requests for exemptions and must make sure to document them fully.
Protection Against Personal Injury Claims for Vaccine Makers
In a 2018 decision, the United States Supreme Court provided protection to vaccine makers from legal claims seeking compensation against them for injuries or fatalities. The court’s decision further reiterates that the National Vaccine Program and the FDA, and not juries, are better judges of the safety and efficacy of vaccine design.
Will a COVID-19 Vaccine Be Treated Differently?
The laws currently in place deal with employers involved in direct patient care if the risk to patients is substantial. However, the United States Equal Employment Opportunity Commission (EEOC) believes the COVID-19 virus to be a ‘direct threat’ as per the standards laid down by the ADA. This allows for more stringent controls and medical screening than generally permitted under the ADA.
Federal agencies like the CDC and Occupational Safety and Health Administration (OSHA) seemingly approve of employer-mandated vaccination policies, particularly for critical sectors of the economy. The CDC has a document regarding this, titled ‘Roadmap to Implementing Pandemic Influenza Vaccination of Critical Workforce’, and OSHA has been advocating its inspectors to get the COVID-19 vaccine as soon as it becomes available.
The Latest EEOC Guidance for COVID-19 Vaccine
On December 16th, 2020, the Equal Employment Opportunity Commission (EEOC) issued its guidance for employers concerning the interplay between the COVID-19 vaccine policy and federal equal employment opportunity laws.
The EEOC’s guidance reinforces that employers have the authority to carry out mandatory vaccinations. However, employers must provide accommodation and engage with certain categories of employees.
These include, firstly, the employees who cannot get the vaccine because of disabilities. The second category of employees that can refuse the mandatory vaccine are the ones with genuinely held religious beliefs that preclude any type of vaccination.
In both exceptions, employers cannot exclude the workers from the workplace without sufficient proof that they pose a ‘direct threat’. Also, the employers must engage with the employees to find out if a way to mitigate the risks to others is available without terminating or excluding the exempted employees from work.
Be Prepared for the New Normal
The introduction of guidance promulgating mandatory COVID-19 vaccines is likely to result in plenty of requests for accommodations on various grounds such as medical, ethical, and religious.
Employers may enforce mandatory vaccination policies but must keep in mind the limited exemptions. As we are approaching a new normal, we must be ready to change our perceptions regarding health and work, and employers may have to make some unprecedented decisions.