Can Employers Require Workers to get a Covid Vaccine?

As health and political leaders craft strategies for distributing Covid-19 vaccines nationwide, questions about workforce implications of the rollout are top of mind for many employers.

The first and perhaps most obvious of these questions: Can I require my employees to get vaccinated? According to Diane Hoffmann, a professor at the University of Maryland School of Law, the answer is yes.

A vaccination is legally considered a medical procedure, which employers can require their employees to receive if deemed necessary to perform their jobs safely and successfully, said Hoffmann, who serves as director of the school’s Law and Health Care Program. Given the highly infectious nature of Covid-19, a vaccine mandate may be considered particularly in workplaces where employees must work on site and in close proximity to one another, or in those where they interact extensively with the public.

But just because employers can legally mandate getting a coronavirus vaccination doesn’t mean they all will.

There is some precedent for large-scale vaccine mandates, Hoffmann said. For example, most K-12 schools across the country require children to provide proof of certain immunizations before they can attend, and health-care organizations such as hospitals and nursing homes often require their employees to get several vaccinations, including an annual flu shot.

However, vaccine mandates in other areas of private industry are relatively unprecedented.

Hoffmann said some employers may worry about the legal repercussions of mandating a vaccination, including exposing themselves to a lawsuit if an employee has an adverse reaction to the vaccine. Additionally, employers who do opt to require their employees to be vaccinated will have to allow exceptions for people with a religious belief or medical condition that legally precludes them from receiving vaccines. Employers may have to make special accommodations for those who cannot be vaccinated if they establish a mandate.

However, there is also a risk that employees will sue if they are required to come back to a workplace without a vaccine mandate,and they end up contracting Covid-19, Hoffmann pointed out.

“For a lot of businesses, this will be uncharted territory,” Hoffmann said. “I expect lots of employers will be talking to their lawyers about the legal frameworks here.”

The vaccine formulations being brought to market are reported to be more than 90% effective, and are cleared for use under the U.S Food and Drug Administration’s “emergency use authorization,” a system that expedites the availability of certain health interventions during public health emergencies. Hoffmann said employers may want to wait until the vaccines have received full standard FDA approval before they consider making vaccination a job requirement.

That seems to be the route that Maryland-based health system MedStar Health is taking. MedStar CEO Kenneth Samet said although his was one of the first health systems in the country to mandate flu vaccinations for its workers, it is not requiring Covid vaccinations for now.

At this point, MedStar leaders are strongly encouraging employees to get the vaccine if they can. Samet said he would be “first in line” if he were among the essential workers at the front of the distribution hierarchy, but he understands some people may be nervous about the vaccines and will want to wait until more data is in.

While employers mull their options with counsel, human resources expert Amy E. Polefrone said every employer should at least be developing a game plan for when vaccines are widely available.

“These vaccines have big implications for everyone getting back to work,” said Polefrone, who is CEO of Ellicott City’s HR Strategy Group. “Employers should be preparing, and doing everything they can to encourage employees to get the vaccine.”

Polefrone said for many companies, the Covid vaccines represent a path to getting truly back to business. She said business owners should be laying plans for how a phased return-to-work strategy might go, and maintaining open communication with their employees. She recommended employers share educational materials about vaccines and invite science and health experts to speak to workers about any questions or concerns they may have.

She also advised that business owners make the process of getting vaccinated as burden-free as possible for employees. Health insurers are expected to cover the costs of Covid vaccinations for their individual and group policy holders. But for those businesses that do not offer health benefits, Polefrone said employers may want to consider subsidizing or covering the costs of vaccinations.

Polefrone said it will take many more months before we have mostly vaccinated workforces, but she is excited to see the first steps in that direction happening. In the meantime, she said companies should expect to continue operating with mask and social-distancing requirements, as well as increased cleaning schedules for the foreseeable future.

From the Triangle Business Journal:

Morgan Eichensehr
Baltimore Business Journal

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