Take a Shot at Going Back to Work

Last week we had some pretty exciting news about the advancements of possible vaccines for COVID-19. Studies for treatments from Moderna, Pfizer and BioNTech have been shown to be 95% effective against infection. Dr. Anthony Fauci was extremely pleased, as he would have been happy with 70% efficacy.

Results have been submitted to the U.S. Food and Drug Administration for approval. If approved, however, we are still faced with the monumental task of mass-producing doses and distributing them across the country.

Presumably, health care workers will be the first to receive the vaccine, followed by those most vulnerable to the virus, such as the elderly or those with respiratory conditions or compromised immune systems. Then the rest of us.

It’s almost hard to imagine, but with an effective vaccine that is widely distributed, we may be able to get back to normal. We can once again go without masks, go out to eat, shopping or to the movies without anxiety, and hug our loved ones. Heck, I’ll probably hug some strangers.

It also means that for those working at home, they’ll be able to go back to their jobs. But what if, as a condition of returning, your employer requires that you get a vaccine? Can employers mandate that their employees be vaccinated?

Understandably, many Americans are reluctant to get a shot considering this vaccine was developed in record time. In addition, as the debate about masks has proven, many people are uncomfortable with others dictating what they view as personal health decisions.

However, it is likely that employers are able to legally require that employees get the vaccine before returning to work.

This is not unchartered territory. Many health care workers are already required to get flu shots each year.

As with everything, there will likely be some exceptions, though. Employees with existing medical conditions may be exempt under the Americans with Disabilities Act. In addition, Title VII of the Civil Rights Act protects employees with “sincerely held” religious beliefs against vaccinations. In these instances, employers could accommodate these employees by allowing them to continue working from home or providing them with personal protective equipment in the workplace or have their workspace otherwise isolated.

Opposing the vaccine for political or moral reasons, however, will likely not be protected. While political arguments may have no legal protection, they still could give rise to tensions between coworkers.

If employers do require vaccinations before returning to work, they may have to deal with the consequences if an employee develops an adverse reaction to the vaccine. If getting the shot is mandatory, the employer could be exposed to a workers’ compensation claim if an employee suffers negative side effects.

So, most employment law experts are advising employers to strongly encourage their employees to get vaccinated, but not require them to do so. Some suggested allowing employees to get the vaccine during work hours as another incentive to get the shot.

Once a vaccine is available, employers will have a difficult decision of whether to require employees to be vaccinated or not. I consider it a vial choice.

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Reg P. Wydeven

Elder Law and Estate Planning Attorney at McCarty Law LLP
Hoping to follow in his father’s footsteps from a young age, Reg’s practice primarily consists of advising individuals on estate planning, estate settlement and elder law matters. As Reg represents clients in matters like guardianship proceedings and long-term care admissions, he feels grateful to be able to offer families thorough legal help in their time of need.

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