Can businesses require employees to get a COVID-19 vaccine?
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Employment lawyers are beginning to field questions from employers about whether they can require workers to be vaccinated for COVID-19.
In the past, employers have been allowed to require safety measures such as vaccines, with exceptions for some employees, according to Aaron Goldstein, a labor and employment partner at Dorsey & Whitney.
“So the answer is likely to be yes, with an asterisk,” he recently told CBS News.
Previous guidance from the Equal Employment Opportunity Commission says employers can require flu vaccines, as long as employees can seek an exemption for medical reasons under the Americans with Disabilities Act or for religious reasons under Title VII of the Civil Rights Act.
State law and collective bargaining agreements would also have to be considered by employers.
So far, the EEOC has not provided guidance to employers on COVID-19 vaccine requirements. A spokesperson told the Washington Post that the issues are under consideration. Nor has there been guidance from the Occupational Safety and Health Administration, according to Jessica Taub Rosenberg, a partner at Kasowitz Benson Torres who spoke with Thomson Reuters Legal.
What’s different now is that the COVID-19 vaccine is being distributed under an “emergency use authorization” from the U.S. Food and Drug Administration, rather than a full licensure, according to the Washington Post.
The fact that the vaccines are being approved without a full review process “makes it a bit trickier for the EEOC and OSHA to decide how to guide employers,” Rosenberg told Thomson Reuters Legal.
Rosenberg also discussed potential liability for employers who give vaccines at the workplace. If an employee got sick or died, the employer might be protected under the Public Readiness and Emergency Preparedness Act, she said.
“There is a fund under the PREP Act to compensate people who get injured from a vaccine, and workers’ compensation laws would likely cover those injuries in certain states,” Rosenberg said. “So there really is protection for employers out there if they really want to safely protect their workforce and they believe in this vaccine.”