The short answer to this question is yes, an employer can mandate employees to receive the COVID-19 vaccine. However, there are some contingencies that need to be well thought out before implementing a first of its kind type of mandate.
It seems logical to have employees receive the vaccine as it is highly transmissible and many employees typically work within close proximity of each other. If most of the workforce are vaccinated, than that also offers protection to the employees who are immunocompromised or living at home with someone who is immunocompromised. Makes sense, right? It is a similar concept to when children are vaccinated against, say Polio. The more people who are vaccinated, the less chance the virus has for survival. And it helps that the Moderna and Pfizer vaccines are under FDA review, providing much more credibility and safety than the previous vaccination efforts which left many people skeptical. A vaccine would also be more effective than the current precautions taken, such as taking an employees temperature, when it is a known fact that some positive COVID-19 cases are completely asymptomatic making this protocol limiting in detection.
However, I can foresee many red flags to this strategy that will need to be well thought out prior to implementation. How does an employer even institute such a policy? For example, how will employers manage employees who flat out refuse to get vaccinated and would prefer to continue to wear a mask in accordance with CDC guidelines? Will they be fired or be given an accommodation? How easy would it be for an employee to claim a religious or ADA exemption? Also, does this set the precedent for certain employers to mandate employees to receive future vaccinations like hospital staff are required to? COVID-19 may be deadlier than the annual influenza virus, but the concept behind vaccination is still the same. Does this not open the door for future mandated vaccination considerations?
Without specific guidelines, how can an employer possibly avoid the pitfalls associated with an employee mandated vaccine? One solution I can think of as a way for employers to avoid blame, would be to make vaccination a California state requirement. However, there are red flags with that as well and that just does not seem plausible.
Unfortunately, employers will have to navigate this process as it unfolds. If anything this pandemic has taught us to be flexible and adaptable while keeping employee safety a priority. If planning on mandating the COVID-19 vaccine, this would be a good time to utilize your Human Resource Consultant or legal counsel to help create a policy and strategy.
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