Ask The Lawyer By: Daniel A. Gwinn, Esq. – Mandatory Vaccinations?
WORKER BALKS AT IDEA OF MANDATORY VACCINATION
QUESTION: My employer has been floating the idea of requiring everyone at work to get vaccinated for COVID-19, once the vaccinations are available. I know it’s still a ways off, but – I do not trust vaccines developed in such a rush, and I will not put myself at risk by taking one. Can I be forced to take one?
ANSWER: You are not alone in your distrust of the COVID-19 vaccines recently approved for emergency use. A Dec. 15 poll by the Kaiser Family Foundation found that 27 percent of Americans would be unwilling to take the vaccine, even if it were free and deemed safe by scientists. That’s down from the 34 percent who said in September they would either definitely not get the vaccine or probably not get it. Among those who are hesitant to get the vaccine, 55 percent didn’t trust the government to ensure the vaccines’ safety and effectiveness, and 51 percent were concerned about the role politics played in the development process. Some 71 percent of Americans said they would definitely or probably get the vaccine.
Although almost three quarters of the population would most likely get vaccinated, just over half think a vaccination should be required for work, according to a CNBC/Survey Monkey Workforce Happiness Survey. Surprisingly, the idea that co-workers should be required to receive a COVID-19 vaccination before returning to the office received the most support among 18- through 24-year-olds (61 percent). The other group most supportive of the idea were workers over 55: Some 63 percent of workers age 55-64 favored requiring workers to get the shot, and 73 percent of workers over 65 did so. The strongest opposition to mandatory vaccinations came from workers in the 25-34 and 35-44 age brackets (46 percent and 47 percent opposed, respectively). Political views also played a role in how willing workers were to support required shots: 75 percent of Democrats were in favor, while 41 percent of Republicans said they “strongly oppose” the idea.
Many of the fears around the new vaccines are based on misconceptions, said Anthony Fauci, MD, director of the National Institute of Allergy and Infections and a former member of President Trump’s COVID-19 Task Force. In a recent interview with CNBC, Dr. Fauci debunked many of these myths, including the belief that people can get COVID from the vaccines, that the vaccines can alter a person’s DNA and that the vaccines’ safety was affected by the speed with which they were developed.
But no matter what people believe about the vaccines or how they feel about getting a vaccination, it appears an employer can – with some limitations – make it compulsory.
According to recent guidance from the EEOC, requiring workers to be vaccinated is not, without more, a violation of the law. The EEOC adds, however, that employers may need to make “reasonable accommodations” for workers who are unable to take the vaccine because of a disability (under the Americans with Disabilities Act) or who cannot take the vaccine because to do so would violate a “sincerely held religious practice or belief.” Workers should note that an employer may request information that would support the religious nature and sincerity of the belief, and can also ask for verification that an employee has a disability that would prevent him or her from receiving the vaccine.
While requiring a vaccination may be legal, employers might want workers to get the vaccine from their own doctors or other health care providers to avoid the possibility that an employee might reveal “genetic information” to anyone affiliated with the employer during a pre-vaccination screening. Employer access or even exposure to information contained on pre-shot questionnaires might violate a worker’s rights under the Genetic Information and Nondiscrimination Act (GINA). GINA forbids employers from using genetic information to make work-related decisions, or (with some exceptions), from acquiring genetic information from employees. Genetic information includes family medical history. Workers can be asked to provide proof that they received both rounds of the vaccine, and that’s it. Even then, an employer would be wise to warn workers not to include anything that could be viewed as genetic information in the proof of vaccination provided.
So, the answer to your question, whether you can be required to get vaccinated as a condition of continued employment is a (qualified) yes. Whether your employer would be wise to present a possibly divided workforce with such an ultimatum is another question.
The lawyers at GWINN LEGAL PLLC are experienced attorneys and are happy to answer your questions. Give us a call for a free initial telephone consultation about your legal needs. For consideration of your questions in our web column, please submit your inquiry on the “Contact Us” page of our website at www.gwinnlegal.com.
Information provided on “Ask the Lawyer” is current as of the date of publication. Laws and their interpretation are subject to change. The material provided through “Ask the Lawyer” is informational only; it should not be considered legal advice. Submitting a question to “Ask the Lawyer” does not create an attorney-client relationship between the person submitting the question and GWINN LEGAL PLLC. To view previous columns, please visit our website.
ASK THE LAWYER
By: Daniel A. Gwinn, Esq
.Attorney and Counselor at Law
GWINN LEGAL PLLC
901 Wilshire Drive, Suite 550
Troy, MI 48084
(248) 247-3310 facsimile