With growing numbers of people becoming eligible for the Covid-19 vaccine, employers are wondering more and more: Can I require my workers to become immunized? And should I?
As with so many pandemic-related questions, the answer is not simple.
“This is a new frontier, and the law and the surrounding circumstances are developing every day,” said Ben Traverse, an attorney specializing in labor and employment at Downs Rachlin Martin in Burlington.
Because the Covid-19 vaccines currently in circulation have only received emergency use authorization from the federal Food and Drug Administration, some experts argue that they cannot be mandated until they are fully licensed by regulators. The FDA’s own guidance on the expedited regulatory process states that recipients should be informed they “have the option to accept or refuse the [emergency use authorization] product.”
“While organizations are certainly free to encourage their employees, students, and other members to be vaccinated, federal law provides that, at least until the vaccine is licensed, individuals must have the option to accept or decline to be vaccinated,” Aaron Siri, a managing partner at Siri & Glimstad, a New York-based complex civil litigation firm, wrote in a STAT News opinion piece in February.
But others disagree. And they point to federal recommendations as well — including from the Equal Employment Opportunity Commission, which released guidance in December that said bosses could mandate vaccinations. (Under that guidance, employers would have to make exceptions for workers with medical conditions and those would decline the shot for religious reasons.)
Traverse is telling clients that they are within their rights to require immunization if they want to, based on what the EEOC has written. The FDA’s guidance, he argues, prohibits “public authorities” from mandating vaccinations but doesn’t apply to employment conditions at private companies.
Still, he says it’s possible someone might test that theory in court.
“I could see an employee bringing a lawsuit saying, ‘Well, wait a minute, this is an emergency use authorization vaccine. I can’t be forced to get it,” he said. “But we’re still advising employers that the government has said you can do it.”
The state has not yet weighed in on how Vermont employers should handle this question. But in January, President Joe Biden issued an executive order that, among other things, required federal agencies to provide “revised guidance to employers on workplace safety during the COVID-19 pandemic.” Vermont Attorney General TJ Donovan’s office expects that guidance will be released soon, said Charity Clark, his chief of staff, and will evaluate how these may interact with Vermont law at that time.
But whether an employer can require their workers to get vaccinated, they may not want to — at least, not yet, argues Tim Lahey, an infectious disease specialist and director of clinical ethics at the University of Vermont Medical Center.
Right now, demand for the vaccine far outstrips supply, and “we know that any mandate generates pushback,” Lahey said.
If the state gets to a place where the virus is still widely circulating and all those who want the vaccine have already done so, then it may be worth engendering such a backlash, Lahey said. But in the meantime, he said, it’s better to try carrots, not sticks.
“You could imagine that the pandemic gets controlled sufficiently just by vaccinating the willing,” he said.
For Lahey, it does get more complicated in workplaces that serve those most at risk for Covid-19, like long-term care facilities. But even there, the wisdom of imposing a mandate depends on the specifics of the situation. Have the residents been vaccinated? How prevalent is the virus in the community? Has the take-up rate for vaccination among workers generally been high?
“If you’re in a nursing home, where community caseloads are super low, and a huge percentage of the population is vaccinated, it may not make sense because maybe the protection is already there,” he said. “On the other hand, if you had a town where vaccination levels have been low and there the case levels are high, and you’re in a nursing home, well, maybe they do need that protection.”
