Ask The Lawyer By: Daniel A. Gwinn, Esq.

Image by Angelo Esslinger from Pixabay 


QUESTION: I was recently offered a new job, but the offer came with a requirement that I get a COVID vaccine at least two weeks before I start work. If I don’t get the vaccine, I don’t get the job. I thought it was against the law to require a vaccine or else. Besides, COVID is just about over, isn’t it?

ANSWER: What a difference a year makes! Last fall we were writing about a new rule from the Occupational Safety and Health Administration that would have required all businesses with at least 100 employees to mandate COVID vaccinations for their workers. The rule never went into effect: First it was put on hold by a federal appeals court in Louisiana, then the Supreme Court ruled that OSHA lacked authority for such a broad national rule.

But, the Supreme Court’s ruling applied only to the power of the federal government to require businesses to force workers to get the jab. It had no effect on the power of private businesses to require employees to get vaccinated. And, private businesses can pretty much create any work requirement they want, within legal limits. Employers can forbid discussion of certain subjects in the workplace, or even online, they can refuse to hire people who smoke, they can even monitor your online activity and follow your every click on a work computer.

There are some limits: Employers can’t require workers to engage in illegal conduct, or discriminate on the basis of race, sex, sexual orientation, color, religion, disability, weight, marital or familiar status, etc. Your potential employer is within his or her rights to make getting a vaccination a prerequisite to being hired (as long as an exemption is allowed for medical or bona fide religious reasons).

And there are still good reasons for requiring vaccines. COVID is not even close to being over, although — thanks in part to vaccines and improved treatment options — fewer people are dying from the disease this year than last. On September 15, 2022, the daily average of new COVID cases in the United States was 64,308. While this does represent a significant drop from the more than 130,000 daily cases reported this time last year, it is still an alarmingly high number (China, with a population four times as large as the United States, reported an average of just over 52,000 new cases). Similarly, although deaths from COVID declined from a daily average of over 2,000 in September 2021 to just under 500 deaths in September 2022, COVID remains the third leading cause of death in the United States, right behind heart disease and cancer. And, unlike those two killers, COVID is contagious.

While our understanding of COVID has increased dramatically since March 2020 when an infection was often a death sentence, little is known about the long-term effects of the disease. According to information from the Census Bureau, about 16 million working-age Americans have long COVID, which can include debilitating fatigue, headaches, and “cognitive and sensory disturbances.” According to a study by researchers at Case Western Reserve University School of Medicine, seniors who survived a COVID infection have a much higher risk of Alzheimer’s.

While the original COVID-19 vaccine proved less effective against the Omicron strains of the virus, those who had been vaccinated were still at less risk of getting a severe case of the illness. According to one report, unvaccinated people were six times more likely to die than those who had been vaccinated and received one booster; the unvaccinated were 16 times more likely to die than those who had been vaccinated and received two booster shots.

So, while getting a shot is not high on anyone’s bucket list, if there’s no medical or religious reason you can’t get the jab, and you want the job – go for it. And, by the way, you might want to get a flu vaccine while you’re at it. The flu is nothing to sneeze at: During the 2021-22 flu season, as many as 14,000 people nationwide died (COVID claimed more than 460,000 American lives in 2021).

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By: Daniel A. Gwinn, Esq.
Attorney and Counselor at Law
900 Wilshire Drive, Suite 104
Troy, MI 48084
(248) 970-0310
(248) 970-0311 facsimile
[email protected]