In November, Pfizer and Biontech announced that its vaccine for the novel Coronavirus was more than 90 percent effective at preventing study participants from getting sick with Covid-19, news that was trumped just days later when Moderna announced that its Covid-19 vaccine candidate was just shy of 95 percent effective. In both Phase III trials — the final stage needed before companies can file for regulatory approval with the Food and Drug Administration (FDA) — the vaccines were also found to have a good safety profile, with the largest complaint being pain at the injection site (but isn’t that always the case with a shot?) Other vaccines by the likes of AstraZeneca, Johnson & Johnson, Sanofi and GlaxoSmithKline, and Novavax are also in the final stages of development, with results from trials expected to be published shortly.
Given the nature of the current pandemic, the FDA is expected to review regulatory filings for the two front-runner vaccines by Pfizer and Moderna under its emergency authorization use (EAU) process, which means that a vaccine could potentially become available as early as December. Yes, you read that correctly — literally days after the FDA gives the OK, the vaccine could hit shelves, largely because the companies leading the charge on the development are so confident in their ability to gain regulatory approval (both here in the US and abroad) that they are already on the production line. At this time, it is unclear which folks will be the first to get the vaccine, but the working assumption among health policy folks is that it will go first to those at highest risk of infection, including healthcare workers, first responders and law enforcement. Next, the vaccine is likely to be made available to the elderly, the immunocompromised, and those with other chronic health conditions that place them at higher risk of both contracting and dying from the virus, with a roll out to the general population not expected until Spring of 2021.
For companies, many of which have been crippled by the pandemic, the availability of a vaccine that could offer significant protection for workers — and potentially pull us out of lockdown — is welcome news. However, it does represent a moral quandary unlike anything business owners have faced before: Can you make your employees get the vaccine?
According to legal experts, you can require your employees to get the vaccine as a condition of continuing employment. Speaking to the AARP, Dorit Reiss, a law professor at the University of California, Hastings, who specializes in legal and policy issues related to vaccines, noted that employers may have the upper hand in this scenario simply because “if an employee doesn’t vaccinate, it’s not just a risk to them. It’s a risk to other employees, and — if it’s a customer-facing business — a risk to the customers.” She warns, however, that there are some notable limitations to any policy, with employers likely having to include an opt out option for religious or medical exemptions. In the case of a medical exemption, she notes that employers will likely be required to engage in the reasonable accommodation process under the Americans with Disabilities Act (ADA), such as asking those that can’t receive the vaccine to wear a mask or work from home or away from other staff members. “If you can achieve the same level of safety as the vaccine via mask, or remote working, you can’t fire the employee. You need to give them an accommodation,” she adds. However, should an employee fail to comply with these accommodations, it can constitute grounds for termination.
Meanwhile, some experts warn that creating a mandate — even with the option of the medical or religious exemption — could prove very murky for employers. Jay Rosenlieb, an employment law attorney at the Klein DeNatale Goldner law group in California, notes that “it’s treacherous for employers [because] liability that arises from requiring a vaccine where the vaccine goes sideways and creates harm to the employee. That is going to probably be a worker’s compensation claim against the employer. And, of course, claim against the vaccine manufacturer. There’s a lot of weighing that goes on here.”
With even experts able to argue both sides of the coin, we turned to the Equal Employment Opportunity Commission (EEOC) for their opinion (since they’re the authority on what employers can and can’t do!) Agency spokesperson Christine Saah Nazer noted that “generally, ADA-covered employers should consider simply encouraging employees to get the influenza vaccine rather than requiring them to take it.” She added that “the Commission continues to closely monitor the developments of a COVID-19 vaccine and is actively evaluating how a potential vaccine would interact with employers’ obligations under the Americans with Disabilities Act, Title VII of the Civil Rights Act of 1964, and the other laws the Commission enforces.”
So, let’s circle back to the notion of simply encouraging employees to get the vaccine rather than requiring it. The experts suggest that most companies will likely go this route, especially during the early days of the roll out. Some, meanwhile, are expected to try to promote its use by facilitating access to the shot, such as having a nurse come to the office or offering it for free for those who wish to receive it. Should there be low participation in the vaccine, state and local government may step in and make the decision to make the vaccine mandatory for businesses, but this is not likely to happen until the vaccine is widely available. However, even Anthony Fauci, director of the National Institute of Allergy and Infectious Diseases, suggests that a vaccine requirement is unlikely, noting ““I’d be pretty surprised if you mandated it for any element of the general public. You cannot force someone to take a vaccine.”
How do you expect to handle the availability of a vaccine among your workforce? Let us know in the comments.
