EASTON — Employers may try to pressure and compel workers to get COVID-19 vaccines as states roll out mass vaccination plans in the coming weeks and months.
Employees who do not want to get the coronavirus vaccines have some legal protections to resist employer mandates through the American with Disabilities Act.
The ADA offers disability and religious exemptions for workers who do not want to get a COVID vaccine. There also privacy provisions in the ADA about how much employers can ask about workers’ private lives — including medical procedures and vaccinations.
“The Americans with Disabilities Act limits the types of medical inquiries that employers can make. Therefore, a requirement that the employee receive the vaccine and then disclose that to the employer is what the statute guards against,” said Suzzanne Decker, an attorney and principal with the law offices of Miles & Stockbridge, which has an office in Easton.
But the fights may center on whether employers can convince the courts and regulatory agencies that forcing workers to get vaccinated for COVID is essential to their business operations.
“The ADA requires that the inquiry and medical requirement (such as a vaccine) be job-related and consistent with business necessity,” Decker said.
Joyce Smithey, principal with the Smithey Law Group in Annapolis, expects to see employers pursue the business necessity path in their pushes to get workers vaccinated.
Smithey said a significant number of employers will rely on the business necessity argument to mandate workforce vaccinations.
“For most employers they can compel it,” said Smithey, who expects many industries to make the necessity argument because of the severe impacts of the virus.
Hospitals, nursing homes and other health care workplaces have been allowed to mandate flu and other vaccinations for employees to protect the health of patients.
“This would just be a continuation of that,” Smithey said.
Some employers will push hard for vaccinations to help reopen the economy and will look for backing from the courts, as well as state governments and federal agencies such as the Equal Employment Opportunity Commission (EEOC) and Occupational Safety and Health Administration (OSHA).
“There is an open question about whether, due to the severity of COVID, that the allowance can be given to all types of employers. The Equal Employment Opportunity Commission left open this question in its Pandemic Preparedness in the Workplace and the Americans with Disabilities Act guidance updated for COVID-19,” Decker said, referring to guidance from the federal agency earlier this year.
“Employers are hopeful that the EEOC will opine that employers can require a vaccine,” Decker said.
A new Biden administration in January would also be expected to be more in favor of vaccinations than President Donald Trump, who has championed a COVID vaccine but might stop short of backing up private sector pushes to compel employees to get it.
Smithey also expects to see courts and government agencies being hospitable to potential employers on the COVID vaccine front.
Employees with religious beliefs opposed to vaccines, as well as those with medical conditions that might result in adverse health reactions to a vaccine, will have legal backing.
“Employees can ask for an exception under the ADA. They will have to show that they have a disability, that the vaccine would be harmful related to that disability,” Decker said.
But Smithey added that those employees in both those groups may be required to continue wearing masks and practice social distancing after other obligations might be lifted on employees who get COVID vaccinations.
“I think we are going to see some of that,” Smithey said.
The vaccination issue could face a number of complications as it is rolled out to the general public.
Decker points out just one example.
“There has been reporting that certain airlines will require evidence of a vaccine for international travel. So, if an employee’s job required international travel, the employer may require that the employee be able to travel internationally, which would include being immunized. The ADA would not restrict that type of requirement,” Decker said.
Public opinion polls have shown significant skepticism and opposition toward a COVID vaccine — including in Maryland. A Goucher College Poll in October showed 61% of African Americans, 55% of rural Maryland voters (including on the Eastern Shore), 53% of conservatives and 50% of women in the state said they would not get a COVID vaccine.
That was before the election and Biden’s projected victory, as well as the drumbeat of high success rates for COVID vaccines.
Still, employers and the medical community will have to overcome opposition to vaccinations.
The state of Maryland has no plans to mandate residents get a COVID vaccine, said Charles L. Gischlar, spokesman for the Maryland Department of Health.
Still, during a press briefing on Tuesday, Dec. 1, in Annapolis, Dr. David Marcozzi, senior medical advisor to Maryland Gov. Larry Hogan, pressed residents to get a COVID vaccine.
“When it is available to you go and get one,” he said.