With the first round of COVID-19 vaccine shipments headed to South Carolina this month, employment law attorneys expect that as it becomes widely available in 2021, they will hear from clients with the same questions that law firms will soon have to answer for themselves.
Chief among them: Can they require their employees to get the vaccine?
The answer: Yes, but with caveats that include exceptions to the law, pushback from employees, and the threats of workers’ compensation claims, and EEOC complaints.
Up to 300,000 doses of COVID-19 vaccines were set to arrive in South Carolina by year’s end, according to the South Carolina Department of Health and Environmental Control. “Operation Warp Speed” will first provide vaccines to health care workers, nursing home employees and residents, and some federal workers. Heading into 2021, availability will extend to the incarcerated, people older than 65, people with chronic health conditions. By spring, if all goes to plan, vaccines will be available to the general population at doctors’ offices and pharmacies.
But with COVID-19 being a political issue in addition to a public health issue, employers can expect some pushback. In fact, David Dubberly, who chairs Nexsen Pruet’s employment and labor law practice group in Columbia, South Carolina, said he can guarantee it, as one need only look at the controversy surrounding mask-wearing.
Poll numbers back up Dubberly’s prediction: a Gallup poll released Dec. 8 found that 37 percent of Americans said they wouldn’t take the vaccine, while an Elon University poll released Dec. 10 found that 60 percent of North Carolinians surveyed said that they either won’t take it or aren’t yet sure if they will. Worryingly, a third of those who answered the Elon poll said they believed the vaccine could be more dangerous than COVID-19 itself. (There is absolutely no scientific basis for believing that vaccines would present a greater risk than the virus, which has already killed more than 300,000 Americans.)
Hey, boss, a no, a maybe
That’s where things could get tricky. While employers can indeed make the vaccine mandatory, the American with Disabilities Act requires them to provide “reasonable accommodations” for employees who won’t take a vaccine because of medical reasons. Title VII of the Civil Rights Act of 1964 also allows employees to opt out of vaccines for religious reasons. The EEOC fined a hospital in North Carolina $89,000 in 2018 after it fired three employees for refusing to take a flu vaccine due to religious reasons.
Employers can demand a letter from a medical professional attesting to a medical exemption. Religious objections are a different animal, but politics can’t be confused with religion and aren’t a legal standing for employees who refuse the vaccine, attorneys say.
Dubberly points to guidance the EEOC and OSHA gave during 2009’s swine flu pandemic: The ADA forbids employers from requiring employees to take medical exams unless they are job-related, consistent with business, and no more intrusive than necessary. A vaccine is considered a medical exam; Dubberly said that requiring employees who don’t voice religious or medical objections to take the vaccines during a health emergency meets those standards.
But the fact that employers can do something doesn’t necessarily make it a good idea, and companies should consider how a mandate could affect morale, said Richard Rainey, an employment law attorney with Womble Bond Dickinson in Charlotte, North Carolina. Moreover, vaccines can have short-term physical side effects, and employees could file workers’ comp claims if they have an adverse reaction.
“A mandate is not going to be popular with a certain subset of folks,” said Jay Babb, an attorney with Cromer, Babb, Porter and Hicks in Columbia, South Carolina, who also cautioned against an ultimatum.
Take me to your arm
Dubberly suggests that employers also consider the type of environment employees work in before requiring the vaccine. A hospital, for example, is different from a warehouse or an office, where people can easily keep their distances from each other.
As far as law firms themselves are concerned, many haven’t yet discussed what their policies will be, as few expected a vaccine to actually arrive at warp speed. Others, like Nexsen Pruet, won’t require its attorneys or staff to take the vaccinations. Still others, like Fox Rothschild in Raleigh, North Carolina, are now in the midst of those discussions.
“We are actively considering what a full return to the office would look like,” said Matt Leerberg, a managing partner with the firm. “Vaccinations are just one piece of what we are thinking through.”
History suggests that people will become more comfortable with the vaccines once they become widely available. The number of people who told Gallup that they’d get the vaccine is up by 13 percent since September, as news of their effectiveness has emerged.
If former Presidents Clinton, Bush, and Obama get their shots on television, as they’ve pledged to do, and celebrities come out in support of it and get it, Dubberly expects that number to rise. He noted that when the polio vaccine was introduced, people were reluctant to take it until Elvis Presley got vaccinated on live television and “suddenly it was the cool thing to do.”