Can employers require vaccination? Should they?
As the distribution of COVID-19 vaccines continues to ramp up, employers in Whatcom County face important questions. Can they require vaccination? (Yes, in most instances.) Should they require vaccination? (The answer is “it depends.”) What role should employers play in what can be a complicated health care decision for individuals and families?
Like the disease, the vaccines are novel. While each vaccine is slightly different, none of them uses the more traditional treatment of injecting the live virus into the vaccine recipient. According to the Centers for Disease Control and Prevention, the vaccines currently approved use mRNA technology.
This new technology, which helped speed the vaccines’ development, works in the following way, as written on the CDC website:
“mRNA vaccines are a new type of vaccine to protect against infectious diseases. To trigger an immune response, many vaccines put a weakened or inactivated germ into our bodies. Not mRNA vaccines. Instead, they teach our cells how to make a protein — or even just a piece of a protein — that triggers an immune response inside our bodies. That immune response, which produces antibodies, is what protects us from getting infected if the real virus enters our bodies.”
Importantly, an mRNA vaccine cannot give the recipient COVID-19. Although the vaccine cannot cause COVID-19, health and religious concerns about brand new vaccine technology may prevent many employees from embracing vaccination — leaving employers in a difficult position and raising an important question: Can employers require that employees receive a COVID-19 vaccination?
In most instances, the answer is yes.
“The Equal Employment Opportunity Commission has issued guidance that states employers can require the vaccine, even if they do not work in an industry with a high volume of public contact,” said Jeffrey Fairchild, an employment law attorney at Adelstein, Sharpe & Serka LLP in Bellingham. “Further, we expect the Occupational Health and Safety Administration will soon issue guidance on what employers can do along with providing some guidance clarifying the liability employers face if an employee gets sick from the vaccination. We also expect OSHA to provide guidance on how to handle an employee’s refusal to take the vaccine.”
Fairchild notes that while employers can require the vaccine, there are limited scenarios in which employees can object. The first and likely more common reason to object is a legitimate medical condition. The Food and Drug Administration has provided guidance that individuals with a known history of allergic reactions to vaccines in general should avoid receiving the COVID-19 vaccine.
The second reason for exemption is a legitimate religious objection.
“While employers can mandate the vaccine, the question of what employers should do — rather than what they can do — is likely best left to each individual business,” Fairchild said. “For those businesses that require the vaccine, figuring out how to accommodate employees who cannot or will not get vaccinated will be an important consideration.”
COVID-19 vaccine policies will probably differ depending on the company’s industry and the likelihood that the disease could be spread through routine business operations.
“We have over one hundred employees spread over six campuses,” said Shawna Walton, director of operations at Christ the King Community Church. “We have stringently followed public health guidelines on masking and social distancing. Thankfully, we have not been a source for spread for our employees or the public. We have also adopted hybrid scheduling for staff, which ensures we can still provide weekend services and limit the opportunity to spread the disease.”
Walton noted that the organization is taking a similar approach to vaccinations.
“We will follow public health mandates and guidance regarding the vaccines,” Walton said. “However, we believe the decision to vaccinate or not vaccinate is best left to the employee. It is best if they reconcile those concerns with their family and their health care provider, rather than their employer.”
All employers interviewed for this article stated that they would adopt a policy of letting employees make their own decisions.
“Thankfully, our company has had no outbreaks of COVID-19 in our facility,” said Matt Mullet, president and CEO of All American Marine in Bellingham. “Initially, we closed for three weeks, just to be safe. We made it through those three weeks, but the ongoing impact on tourism has been hard on our company. The pandemic has affected our bottom line, but thankfully we have landed enough contracts to keep us busy.”
“While employers can mandate the vaccine, the question of what employers should do — rather than what they can do — is likely best left to each individual business.”
— Jeffrey Fairchild, Employment Law Attorney Adelstein, Sherpe & Serka
Like Christ the King Community Church, All American Marine plans on letting its employees decide for themselves whether they will get vaccinated.
“This is a personal decision,” Mullet said. “It just isn’t our culture to micromanage the choices our employees make in their own homes, with their own families. If an employee tests positive or is exposed to the virus, we will take the appropriate steps to limit his or her contact with other employees — and of course we will continue to follow all public health mandates throughout the duration of the pandemic.”
One concern employers share is the potential exposure to liability. Employers fear the liability they may face if someone gets ill from receiving an employer-mandated vaccine. They also fear the liability they could face if someone refuses the vaccine and infects other employees or customers. However, legal experts predict employers will face little-to-no liability either way.
“I do not believe employers will get caught in the legal crosshairs of a lawsuit, regardless of their vaccine policy,” Fairchild said. “This is unfamiliar territory, but unless the employer engages in an act of gross negligence, requiring or not requiring the vaccine likely will not end up with the employer being sued. A refusal to follow public health mandates regarding masking and social distancing could be another story, but a vaccine involves a unique set of considerations.”
Like everything about the yearlong (and counting) pandemic, the vaccine presents Whatcom County businesses with difficult and often complex decisions. In many businesses, individuals lining up for their vaccine and individuals flatly refusing to receive a shot will work side by side. Balancing their concerns will prove challenging as vaccinations become widely available.
“Ultimately, employers should follow public health guidance, use common sense and be supportive as employees consider what their best course of action is,” Fairchild said. “If they do that — and document their policies and process — they should not have to fear any liability.”
Transparency is also important.
“Communication and openness is the key,” said Tony Larson, president of Barlean’s, former publisher of Business Pulse and founder of the Whatcom Business Alliance. “If employers do not properly communicate their COVID- 19 vaccination policy to their team, employees will fill in the blanks. Misinformation around such an important topic can do significant damage to a company culture. Management needs to clearly communicate what their COVID-19 vaccination policy is, the reasons for the policy, and how employees can voice their objections and concerns.”
While employers may not require the vaccine, they are certainly looking forward to a return to Whatcom County’s previously booming economy.
“We have been able to maintain our team without having to do a reduction in staff,” Mullet said. “That said, we cannot wait to turn the corner on this pandemic and get back to business as something close to usual. When that day comes, I think we will all celebrate.”