Many of america’s offices have sat empty conference rooms, idle monitors, dark coffee, mugs, dusty, but as vaccines start to roll out, employers are making plans to fill those offices back up how quickly they succeed could depend on how many of their employees are vaccinated, which begs the Question can your boss make you take the vaccine and, if so, will they do this? I think so. This is robert ayaphola. He covers labor and employment law for bloomberg law. We brought him into an empty office to ask him the question on every worker’s mind. Can your employer legally require you to get a covit 19 vaccine turns out. The answer is yes, but every state in the country, except for montana, has this legal regime which employment relationships are considered to be at will, which means, if you’re an employer in the private sector and your workforce, isn’t unionized under the at will employment doctrine an employer. Can fire a worker for any legal reason so, generally speaking, that gives them the authority to require their workers to take a vaccine. But there are exceptions to that before we get to those exceptions. Let’S pause here for a minute to say something about the vaccines currently available in normal times. A vaccine follows a strict approval process from non clinical testing to clinical trials, to fda approval and manufacturing. This process can take years, but these, of course, are not normal times. All kovid vaccines have been approved under what’s called an emergency use authorization.
This is an expedited process that the fda can use during public health emergencies. Employment lawyers are split over whether that’s an obstacle for businesses that want to require their employees get vaccinated before a vaccine gets full fda approval. So i’ve spoken to some employment lawyers who have told me that, whether it comes from the emergency use authorization or whether it comes from the full approval process, it’s the same thing, so employers are relatively clear to impose mandates. But i’ve also heard from a few lawyers that say it’s more complicated than that. The law here is very unclear, so i do think that this is something that will eventually get tested in court. The bottom line is that, depending on the state, a worker who’s fired for not getting vaccinated may be able to challenge the termination if the vaccine became available through the emergency use authorization regardless there are always exceptions to employer vaccine mandates. Now, where were we on those? So there’s several clear and established exceptions to an employer’s authority to impose something like vaccine mandate uh one of those are for health related reasons. So under the americans with disabilities act, an employer is required to provide reasonable accommodation for a disability. So health is one exception. Number two religion: the way: the equal employment opportunity commission defines religion, it’s, not just faith in a god or membership in an established church, it’s a sincerely held moral or ethical belief, so that sort of person would have an opportunity to ask for a religious accommodation.
Finally, the presence of a union can also add a layer of complication. One issue may be that they would have to negotiate with the union before imposing a mandate. So we know that, with a few exceptions, employers generally can require their workers get vaccinated, but should they? What i’ve heard from lawyers is, generally speaking, there’s complications to imposing of the use of the vaccine that could be more trouble than it’s worth that could include being forced to fire talented hard to replace workers. There are legal gray areas that need to be taken into consideration with polling, showing some americans resistant to taking the vaccine. Employers are going to have to decide how heavy handed they want to be. Do they risk losing a portion of their workforce or at least damaging morale vaccine mandates have been used in the past in hospitals and other health care settings with the pandemic raging? Will companies in other industries try requiring covid19 vaccinations? There are some industries where workers have close contact with each other, a manufacturing line, a meat packing line. Things like this there’s also jobs where workers have close contact with the general public retail is an example of this, but ultimately it’ll probably come down to a case. By case basis, employers will have to make a decision what works best for their individual workplace. Adding another wrinkle legislators and a handful of states have proposed laws that would ban vaccine mandates, while many are unlikely to pass the efforts underscore the legal tightrope businesses are going to have to walk as the vaccines become more widely available.
So over the next few months, we’re going to see how some of these theoretical issues play out in real life, we’ll see what companies end up. Imposing vaccine mandates we’ll see what industries those mandates come in and we’ll see how courts treat arguments against these mandates.