EXPLANATION: Do employers have the right to require COVID-19 vaccines?

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WASHINGTON (AP) – The US Department of Veterans Affairs. The state of California. New York City. Hospitals and retirement homes. Colleges and universities. Employers are putting in place COVID-19 vaccination mandates and this is getting attention.

President Joe Biden said on Tuesday that a requirement was under consideration for all federal employees. But what if the workers refuse?

Federal legal advice released this week suggests the law is on the employers’ side. Vaccination can be viewed as a “condition of employment”, similar to a professional qualification.

That said, employment attorneys believe many companies will want to meet hesitant workers halfway through.

CAN EMPLOYERS REQUIRE A CORONAVIRUS VACCINE?

Yes. Private companies and government agencies may require their employees to be vaccinated as a condition of working there. Individuals retain the right to refuse, but they have no solid right to legal protection.

“Those with a disability or a sincere religious belief may be entitled to reasonable accommodation under civil rights laws, provided that such accommodation does not constitute undue hardship on the employer,” said Sharon Perley Masling, an employment lawyer who heads the COVID-19 task force at Morgan Lewis.

Employees who do not meet these criteria “may need to take time off or look for different opportunities,” she added.

The US Department of Justice addressed the rights of employers and workers in a legal opinion this week. He addressed an argument raised by some vaccine skeptics that federal food, drug and cosmetic law prohibits employers from requiring vaccination with injections that are only approved for emergency use, such as Coronavirus vaccines are currently used.

Lawyers for the ministry wrote that the law in question requires individuals to be made aware of their “option to accept or refuse administration” of an emergency vaccine or drug. But this requirement does not prevent employers from imposing vaccination as a “condition of employment”.

The same reasoning applies to universities, school districts or other entities potentially requiring COVID-19 vaccines, the lawyers added. The available evidence shows that vaccines are safe and effective.

The Justice Department’s opinion followed earlier guidelines from the Federal Equal Employment Opportunity Commission that federal laws prohibiting discrimination in the workplace “do not prevent an employer from requiring that all employees physically entering the workplace are vaccinated against COVID-19 ”.

The EEOC has listed some instances in which employers must offer exemptions. People who have a medical or religious reason can be accommodated by alternative measures. These can include getting tested weekly, wearing masks in the office, or working remotely.

WHO NEEDS THE VACCINE?

The Department of Veterans Affairs on Monday became the first major federal agency to require healthcare workers to be vaccinated against COVID-19. Also on Monday, the state of California said it would require millions of healthcare workers and state employees to show proof of COVID-19 vaccination or get tested every week. And New York City will require all of its city workers – including teachers and police officers – to get vaccinated against the coronavirus by mid-September or undergo weekly tests.

Raising expectations, Biden said Tuesday that a vaccine requirement for all federal workers was “under consideration at this time.” He has vowed to define the next steps for his administration’s stalled vaccination campaign later this week.

“The more we learn about this virus and the delta variation, the more worried and worried we have to be,” the president said, adding that if an additional 100 million Americans were vaccinated “we would be in a very different world.”

The push for vaccines has been piecemeal in the corporate world. Delta and United Airlines require new employees to show proof of vaccination. Goldman Sachs requires its employees to disclose their immunization status, but does not require staff members to be immunized.

Michelle S. Strowhiro, employment counselor and lawyer at McDermott Will & Emery, said there were costs for employers requiring vaccines. There is the administrative burden of monitoring compliance and managing exemption requests. Allegations of discrimination could also arise.

But in the end, the increase in the delta variant and breakthrough cases in fully vaccinated people “served as additional motivation for employers to take a stronger stance on vaccination in general,” she said. “Employers will increasingly turn to vaccination mandates. “

IS THERE ANOTHER ALTERNATIVE TO MANDATES?

Instead of requiring vaccines, some companies are trying to entice workers by offering them cash bonuses, paid time off and other rewards. Walmart, for example, offers a $ 75 bonus to employees who provide proof that they have been vaccinated. Amazon offers workers a bonus of $ 80 if they show proof of vaccination, and new employees receive $ 100 if they are vaccinated.

WHAT ARE THE POSSIBILITIES FOR EMPLOYEES IF THEY DON’T WANT TO TAKE THE VACCINE?

Most employers are likely to give workers some options if they don’t want to be vaccinated. For example, New York City and California have imposed what’s called a “soft mandate”: workers who don’t want to be vaccinated can get tested weekly instead.

If an employer sets a strict requirement, employees can request an exemption for medical or religious reasons. Second, under the civil rights rules of the EEOC, the employer must provide “reasonable accommodation that does not cause undue hardship for the operation of the employer’s business.” Some alternatives could include wearing a face mask at work, social distancing, working a modified shift, testing for COVID-19 or being able to work remotely, or even offering a reassignment.

DO WORKPLACE MANDATES CHANGE THE PATH OF VACCINE HESITANCE?

It is too early to tell.

“Every employer who decides to impose vaccination sets the stage for other employers to feel safer,” Masling said.

A recent court decision may help move the needle. In June, a Texas federal district court dismissed an attempt by medical staff to challenge the legality of the Houston Methodist Hospital’s vaccination mandate. The court considered that such a requirement was in accordance with public order.

Dorit Reiss, a law professor specializing in immunization policy at the University of California Hastings College of the Law, said “more companies will have confidence that they can mandate the vaccine.”

She believes most companies will follow the path of a flexible tenure, with alternatives for employees who remain reluctant.

“I think it’s a reasonable option,” she said.

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Anderson reported from Nashville, Tennessee.

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