More and more news filters out every day about the raft of vaccines already available or just around the corner. Russia already has one in mass production, Britain has been the first to approve the Pfizer vaccine, while the EU and the US should have determinations on its effectiveness and safety by the end of December. The CDC determined this week who should have priority access to vaccines: healthcare workers and residents of elderly care facilities, where 100,000 US deaths have occurred. Now that a vaccine, or more accurately, many vaccines, seems inevitable, an important new question has emerged: Can employers require workers to vaccinate?
According to a story in the Washington Post, this question has cropped up more and more as employment law firms are inundated with questions from workers and employers about the legal requirements surrounding coronavirus vaccination. At this point, there is no definitive answer to the question, but there are a few things we do know.
First, and most importantly, the vaccine is not likely to be available widely until the spring at the earliest. There are significant logistical hurdles that need to be cleared, such as proper storage of the vaccine, with both the Pfizer and Moderna vaccines requiring extreme cold to store. Additionally, more mundane tools of the trade are in high demand, such as glass vials and stoppers, liquid nitrogen, and syringes.
Second, in some cases, employers do have the right to compel workers to be vaccinated. Hospital systems, for example, can require workers to get a flu vaccination. However, the law also allows for “reasonable accommodation” to be made in lieu of vaccination. This is set out primarily in the Americans with Disabilities Act (ADA) and the Civil Rights Act of 1964, and the EEOC published some guidelines in the spring. Such accommodations might include mask wearing or working from home. However, the EEOC will have to make further deliberations as more information becomes available from the CDC and local and state agencies.
Third, some larger businesses are already developing vaccine plans. Ford, for example, has already purchased several large freezer units capable of keeping the Pfizer vaccine stable. Other employers, such as food processing businesses are either snatching up similar resources or making agreements with health systems.
Finally, there is still widespread distrust within Black and Latino communities about vaccination. According to a recent study, fewer than half of Blacks surveyed said they would definitely or probably take the vaccine and only 66% of Latinos said the same. Much of the hesitancy is the result of decades of distrust regarding medical treatments, and Blacks in the US have long been used as unwitting subjects in US medical experiments, such as the Tuskegee Institute’s syphilis study.
This is a complex issue with many moving parts and we will continue to update readers and clients as more information and legal guidance is made available.
