KLO Blog

Experienced, practical advice of a large firm.
Responsive, efficient, top-notch support of a small firm.

Can Employers or Schools Require Vaccination for COVID-19?

December 07, 2020

favicon2

By: Lily Crespo Esq.

Headline: The answer to this question will depend on relevant EEOC, CDC, and state guidance.

The bad news: The answer to these question will be a frustrating mix of “it depends” and “maybe but maybe not”.

The good news: House passes ‘Tiger King’ bill to ban private ownership of big cats. Read here…

The big question for schools: Can states mandate a COVID-19 vaccine for children in schools? The vaccines that are pending approval would not be available for children under the age of 16. The state health departments and/or or legislatures would have to be the entities that require student vaccinations because a requirement like that would be beyond the authority of local school districts.

A COVID-19 vaccine for children is still a long way off. While Pfizer, one of three drug makers that has a vaccine on the runway, has started testing its vaccine in children 12 and older, it could be well into the 2020-21 school year before children can start getting vaccinated against the coronavirus.

But when a vaccine is available, states have the power to mandate it, per a 1905 Supreme Court ruling, Jacobson v. Commonwealth of Massachusetts. All 50 states require vaccines—typically for diseases such as polio, measles, and tetanus—for children to attend school. However, most states allow families to opt out of getting their children vaccinated for either religious or personal reasons.

If and when these vaccines become available, can employers require employees to take the vaccine? Three pharmaceutical companies, AstraZeneca, Moderna and Pfeizer, have announced COVID-19 vaccines, which the director of the National Institute of Allergy and Infectious Diseases, Dr. Anthony Fauci, has announced could be available as early as later this month.

  1. While there may, indeed, be circumstances where employers can require employee vaccinations, the issue involves a range of considerations and must be handled with care and precision.
    1. For example, invoking an exception to the Americans with Disabilities Act (ADA), the Equal Employment Opportunity Commission has recognized that the COVID-19 pandemic poses a “direct threat to health and safety,” thus impacting the ADA’s typical restrictions on medical checks in the workplace.
    2. Accordingly, subject to various factors, the “direct threat” exception may be an avenue through which employers can require that employees become vaccinated against COVID-19.
  2. In doing so, however, employers must also navigate delicate issues, including reasonable accommodations for employees who object to getting vaccinated either on the basis of a cognizable disability or sincerely held religious beliefs.
    1. Issues of equal access to a vaccine may also implicate disparate treatment issues under mandatory vaccination policies.
    2. Workers’ compensation and/or tort claims due to adverse reactions to the vaccine must also be accounted for, whereas mandatory vaccination policies relative to unionized workforces will likely have to be negotiated as a prerequisite to implementation.
  3. Employers should also consider whether alternate protective measures, including socially distanced workspaces, remote working arrangements and appropriate personal protective equipment, have adequately protected their employees and their business and can be expected to continue doing so.

Takeaway

It is possible the EEOC may approach the COVID-19 vaccine differently than its traditional position on mandatory flu vaccinations. From the beginning of the pandemic, the EEOC has recognized COVID-19 meets the higher threshold “direct threat standard,” which allows employers to conduct more extensive medical inquiries and controls than normal.[i] As the EEOC noted in its Pandemic Preparedness in the Workplace and the Americans with Disabilities Act Guidance, COVID-19 supports a finding that “a significant risk of substantial harm would be posed to having some with COVID-19, or symptoms of it, present in the workplace at the current time.” Further, other federal agencies have issued guidance documents in support of COVID-19 vaccinations. For example, the Centers for Disease Control (CDC) has issued guidance recommending vaccination for critical industries, including health care and community support agencies.[ii] Additionally, the Center for Medicare & Medicaid Services (CMS) issued an Interim Final Rule to help remove administrative barriers creating potential delays to patient access of a COVID-19 vaccine.[iii]

In all, the right of an employer to implement a mandatory vaccination policy has significant legal and practical ramifications. Employers should closely monitor federal, state and local guidance on the issue, and carefully assess whether such a policy is, in fact, enforceable and appropriate.

As you consider these and other issues, we recommend you speak with your school lawyer or contact Bea, Kevin, Megan, Beth, and Lily by email or at 406-542-1300 to discuss these issues.

 

[i] A “direct threat” is “a significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.” 42 U.S.C. §§ 12111(3), (8); 29 C.F.R. §§ 1630.2(r), 1630.15(b)(2); “Pandemic Preparedness in the Workplace and the Americans with Disabilities Act,” U.S. Equal Employment Opportunity Commission (March 19, 2020).

[ii] “Roadmap to Implementing Pandemic Influenza Vaccination of Critical Workforce,” U.S. Department of Health and Human Services Centers for Disease Control.

The CDC has requested that all states create a vaccination plan for the vaccine when it becomes available. Most states have not taken a position on whether or not the vaccine will be mandatory for residents (or school-age children); however Governor J.B. Pritzker in Illinois has stated that vaccines will not be mandatory for school attendance. The New York State Bar Association passed a resolution urging the state assembly to mandate COVID vaccination even if individuals object for “religious, philosophical or personal reasons.” https://nysba.org/new-york-state-bar-association-calls-upon-state-to-con…

[iii]Fourth COVID-19 Interim Final Rule with Comment Period (IFC-4),” Centers for Medicare and Medicaid Services (Oct. 28, 2020)

Kaleva Law

At Kaleva Law Office you receive the experienced, practical advice of a large firm with the responsive, efficient, top-notch support of a small firm. We take care of the legal questions so you can focus on education.

[subscribe2 hide='unsubscribe' antispam='true']

1911 South Higgins Ave.
Missoula, MT
59801

Office Phone: 406.542.1300
Telefax: 406.721.1003
EMAIL US