Scientists say the U.S. will need about 70% of the population to get vaccinated to reach the herd immunity threshold that would effectively put an end to the COVID-19 pandemic. Michael LeRoy, an expert in labor law and labor relations at the University of Illinois Urbana-Champaign, spoke with News Bureau business and law editor Phil Ciciora about the legality of employers mandating that employees vaccinate themselves against the novel coronavirus.
Can an employer legally require an employee to receive a COVID-19 vaccination?
In most cases, yes. In 2018, a federal appeals court dismissed a lawsuit by an employee who refused her employer’s requirement to vaccinate for rubella with the measles, mumps and rubella vaccine. The employee claimed discrimination under the Americans with Disabilities Act and argued that she could have an allergic reaction to the shot. The court put more weight on the fact that she was a health care professional who could cause clients to become ill.
But here’s the main point: If the employer can prove that a vaccination is job-related and consistent with business necessity, an employee who refuses to vaccinate can be legally terminated.
Now, that might make it sound like employers can violate an employee’s personal freedom regarding their body and what they put into it. But the reality is no one has a legally enforceable right to a specific job.
If someone wants to choose freedom not to vaccinate over a job, they are free to make that choice. In any event, U.S. employment law has a bedrock principle of employment at will. Your employer can fire you at any time for any reason, as long as it doesn’t violate a law or a contractual right.
What about religious objections to vaccination?
This area holds some possibilities for vaccine objectors. However, it’s not as simple as saying, “I won’t vaccinate because of my religion.” The burden of proof is on the employee to show how their religious belief is violated.
But suppose that happens. The employer must then offer a reasonable accommodation. In general, health care institutions have allowed religious objectors to flu shots to continue to work, provided they always wear a mask on the job. I haven’t seen a case where a religious objector has a right to avoid vaccination and a parallel right to avoid an alternate mitigation method, such as masking.
How far can state and local government go in requiring first responders or teachers to vaccinate?
I researched that question when Congress passed the Smallpox Emergency Personnel Protection Act after 9/11. National security experts believed our nation was vulnerable to a smallpox bioterror attack – an attack that could have a 30% mortality rate for exposed people. Congress offered incentives in the form of a disability insurance policy of up to $262,000 for emergency personnel to vaccinate themselves against smallpox. Fewer than 40,000 of the 500,000 workers identified by the federal government as front-line responders got vaccinated.
But in terms of requiring a vaccine, the 1905 U.S. Supreme Court case Jacobson v. Massachusetts upheld the state’s authority to require people to vaccinate for smallpox. Since many first responders and teachers are public employees, this century-old case would likely apply to them today.
Now that there will be viable vaccines available in a few months, what should an employer do? Should they start talking to employees about vaccination? Especially if that employer is a restaurant, bar or other indoor congregate setting?
To begin with, the Trump administration has been heavily criticized for not using its authority over the Occupational Safety and Health Administration to issue emergency regulations for industries such as meatpacking, passenger transportation and online retail fulfillment centers, where many workers became seriously ill and some died last spring.
The Biden administration will likely take a more aggressive approach. It might require vaccinations in non-health care industries and settings.
To the restaurant and bar owner, I would simply say that Republican lawmakers keep pushing for widespread employer immunity from lawsuits arising out of COVID-19-exposure events. This means that these lawmakers recognize the possibility that potential transmission sites such as restaurants and bars could be sued for negligence.
If I owned a restaurant or bar, I’d start paying attention to these issues and see if my industry is regulated in 2021 – and if so, whether Congress or my state legislature exempts my business for COVID-19-related liability.
Editor’s note: To contact Michael LeRoy, call 217-244-4092; email mhl@illinois.edu.
