The federal government recently addressed an issue facing millions of workers and employers in the coming months: Can workers be forced to be vaccinated because of their jobs?
The answer is very simple: yes.
The Employment Equity Commission has released guidelines for employers that describe different scenarios for a vaccine need in the workplace.
“If an employer needs vaccinations if available …” begins one section of the rules.
While you do not endorse a mandate, ‘the assumption is that it is an implication that you as an employer can do it under certain circumstances,’ said Adam Mastroleo, of Syracuse, Bond, Schoeneck and King.
The details may be confusing, but the overall message is the same: employees who are not represented in a collective bargaining agreement work at will of their employers – and vaccinations may be a requirement.
At-will employees can be promoted or punished “for good reason, bad reason or not at all,” noted Stewart Schwab, a law professor at Cornell University. Incentives to be vaccinated fall within the same legal framework.
However, the same logic offers other, perhaps more realistic options. Employers can legally provide incentives to employees to be vaccinated. There could be bonuses, 401,000 payouts, prizes or even better working conditions for those who agree to be vaccinated, Mastroleo and Schwab said.
As with every vaccination requirement, there are exceptions for those with a medical disability that do not enable them to take the vaccine, and for those who have a sincere belief in vaccines.
In both cases, the employee must make their employer aware of the problems and probably provide proof. The employer is then expected to try a reasonable accommodation to continue the person’s service.
The EEOC has warned employers to do everything in their power not to fire employees with a religious or medical exemption.
The question of whether you may be vaccinated in your workplace may be a case in point. A hospital or nursing home may be required so early on, while a worker who is already working remotely may decide that no mandate is required.
Employers may see an advantage in making vaccines available on the premises, or in offering their workers coverage to be vaccinated. Lawyers said the obligation for employees to be vaccinated directly through a workplace has privacy issues, but that requiring employees to be vaccinated alone is legal.
Political pressure is likely to keep many employers from aggressively pursuing vaccine mandates, Schwab said. It will likely require a mandate from the Centers for Disease Control or another public health agency to require most private businesses.
This is because it is still very new and has not had a long record like other vaccines that are commonly available. Even after being distributed to the general public in 2021, many employers are likely to be cautious before ordering such a heavy mandate, Schwab advised.
“It’s pretty new,” Schwab said. “I think (companies) would be a little reluctant to get into a controversy that is not related to their product.”
Staff Writer Douglass Dowty can be reached at [email protected] or 315-470-6070.