A recent CBS News Poll found four in ten Americans say they either don’t want the COVID-19 vaccine or aren’t sure if they’re going to get it. But can they be required to get vaccinated?
From employers to universities to local governments and businesses, who can legally penalize you for not getting vaccinated? CBS13 is getting answers.
“I’m not an anti-vaxer,” said Amy, a new mom.
She stresses she believes in science. Her son is up to date on his childhood vaccines, and she and her husband are, too. But when it comes to the COVID vaccine, Amy says she’s waiting for longer-term data.
“I would categorize myself for this particular vaccine as vaccine-hesitant,” she said.
Amy is among the 40% of Americans who say they either won’t get or aren’t ready to get the shot. And like many, Amy, has questions about vaccine mandates.
“I don’t think we’re far off from states mandating it. I do hope, though, that they at least wait till it’s FDA approved,” she said.
Can The Government Require Vaccinations?
Like many, Amy points out that the vaccine currently has Emergency Use Authorization, and is not yet “approved” by the U.S. Food and Drug Administration
Can anyone mandate a vaccine before it is FDA Approved?
“Unknown, said Jen Kates, of the Kaiser Family Foundation. “Some employers are doing it. Some universities are doing it. It may be tested in the courts.”
But Kates, director of global health at the foundation, says those rulings will provide short-lived answers as FDA approval is likely to come soon.
Can the Federal Government mandate an FDA-Approved vaccine?
Kates said it is unlikely the Feds would require the vaccine.
She explains the Feds will likely leave that up to states and private entities as there is a long history, and stronger precedent, for states, universities and employers requiring vaccines.
Can Your Employer Require Vaccinations?
“I’ve never had to provide my vaccine information to any employer I’ve ever had,” Amy pointed out.
It is true, outside of healthcare settings, employer-required vaccines have been rare.
Labor attorneys Kimberly Jansen and Mark Spring of CDF Labor Law represent employers.
“They can’t require you as an individual to have a vaccine, but they can require their employees who will be present in the workplace to be vaccinated,” said Jansen.
Absent a clear legal statute, Jansen and Spring point to state guidance that says employers can require an FDA-approved vaccine.
Can an employer require you to get vaccinated before the FDA approval?
“I believe the answer is yes,” Jansen responded.
She says federal guidelines for the vaccines’ Emergency Use Authorizations don’t carry the weight of the law, and there’s no state law prohibiting it.
Though, we won’t know for sure until there’s a court ruling.
“There is nothing in California prohibiting a mandatory vaccine program at this time,” Jansen said.
But, employers must provide “reasonable accommodations,” like working from home, for people with disabilities or “sincerely held religious reasons” that prevent them from getting the vaccine.
What is required for a religious exemption?
“I think it is going to be a difficult bar for people to prove,” Spring said.
He said most major religions don’t have stated opposition to vaccines, which could be required for an exemption.
“Can remote workers be required to be vaccinated?” Amy asked.
The experts said that’s unlikely.
“The basis for mandating vaccines is safety,” Spring said. So, if you’re working from home, you’re not creating an unsafe work environment.
However, the experts stress, your employer does not have to let you work from home unless you have a medical or religious exemption.
“It’s the employer who can require the work location,” Spring said.
Based on current guidelines, without an exemption, he says they can likely require you work from the office.
“Can you be fired?” Amy asked.
“My position is, yes,” Jansen answered.
Jansen says that is because California is an at-will state and there is no law prohibiting mandatory vaccinations. And yes, she says your employer can require proof of vaccination.
Another common question: If someone is injured by the vaccine, can they hold their employer accountable?
“They probably can, but it’s not going to be through the court system. It will be through the worker’s comp system,” Spring said.
While rare, according to federal guidance, adverse reactions to required vaccines are considered work-related injuries and they are covered under worker’s comp. But you’d likely have to file a workplace injury claim proving you only got the vaccine because your boss made you.
Jansen and Spring don’t believe your boss could be held legally liable.
Can Private Retailers and Businesses Require Vaccines?
When it comes to private businesses, many argue that proof of vaccination is a protected medical record.
“So is it a violation of my privacy for a store to request my private medical information in order to enter?” Amy asked.
The short answer, according to experts, is probably not. They say the Health Insurance Portability and Accountability Act (HIPAA), which most people cite for patient privacy, doesn’t apply in this case.
Experts point to negative COVID-19 tests, which are already required by some businesses, and they note that businesses can refuse service to anyone.
Could it be considered discrimination to refuses service because a customer is not vaccinated?
“I think it’s really unclear,” Kates said.
Like many of the answers to vaccine-related questions, we won’t know for sure until the questions are answered by the courts.
However, Kates says as long as businesses are not discriminating based on things like race, religion or disability, there’s a compelling legal argument for protecting employees and patrons.
But, at least for the foreseeable future, she says there will likely be an alternative to the vaccine.
“I think that we’ll likely see the negative test as an option for quite a while,” Kates said.