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Can Your Boss Demand You Get the Shot?

Adnan Zai

In recent weeks, the tide of the pandemic has been shifting, and as the number of vaccinations has increased, the number of cases of Covid-19 has dropped. This is excellent news for mask-weary citizens who are just trying to get back to “normal life.” This news of vaccine success begs the question of whether or not it is lawful for businesses to require vaccination for their employees. If the vaccine is helping the country lower cases and get back on its feet, shouldn’t businesses require their employees to be vaccinated? Not everybody thinks so.

What Does the Law Say?

There is no hard and fast federal rule, and although many businesses think it is a good idea that their employees get vaccinated, many employees see it as a trampling on their rights. NPR recently reported, “There is no federal law specifically addressing that issue. The matter remains up to private businesses, state or other local laws, according to the Centers for Disease Control and Prevention.”

Some clarity on the issue came late last week when The Equal Employment Opportunity Commission said that employees could be required to be vaccinated. “The EEOC, in a statement posted on its website explaining its updated guidance, said employees can be required to be vaccinated as long as employers comply with the reasonable accommodation provisions of the Americans with Disabilities Act and other laws.”

The EEOC also explained that businesses can offer incentives for employees to get vaccinated, as long as the incentives are “not coercive.” The updated EEOC guidance shows employers must make “reasonable accommodations” for employees who don’t get vaccinated because of a disability, religious beliefs or pregnancy.

How are Businesses and States Reacting?

With such a vast array of businesses and varying opinions about vaccines throughout the country, different companies are trying different tactics. “Businesses such as Dollar General and Instacart have already announced plans to offer cash incentives to vaccinated employees, while many long-term care facilities are now requiring workers to get inoculated,” Forbes magazine reported. Companies like Kroger and Petco and even Target are also offering employees incentives to get the shot. This is a tough question. Some employees are upset that they are being forced to be vaccinated, while other employees who take the vaccinations seriously are frustrated that other co-workers do not.

Even the states are on all sides of the situation. Some states have been offering incentives for people to get vaccinated. Maryland is offering $100 state employee payments, West Virginia is giving $100 savings bonds to 16-35-year-olds who get vaccinated, and Ohio recently instituted a vaccination lottery program.

But on the flip side, at least 85 bills have been introduced to limit an employer’s ability to require workers to get a vaccine or to fire someone who refuses to get immunized.

For example, Montana’s legislature passed a bill in April that disallows a vaccine requirement as a condition of employment.

Oklahoma just passed an order that ensures that government agencies cannot turn people away because they are not vaccinated. The action also stated that “all state agencies are hereby prohibited from requiring a vaccination against COVID-19 as a condition of admittance to any public building.”

What are Individuals Doing to Protect Their Rights?

As for states and businesses, people are reacting differently to vaccine mandates, some who are doing it for the good of the whole, and some are worried that their rights are being trampled. Many anti-vaxxers think that by asking about vaccinations, their fourth amendment rights are being violated, but that is not the case. USA Today reports, “The Fourth Amendment only applies to governmental searches and seizures and certainly not to businesses asking for proof of vaccination,” said Lawrence Gostin, a law professor at Georgetown University who specializes in public health law.

Citizens have also turned to the courtroom, filing lawsuits to protect their rights. “Nothing stops anyone from bringing a lawsuit,” Johnny Taylor Jr., president and CEO of the Society for Human Resource Management, told NPR’s All Things Considered. “Courts have sided with employers, Taylor said, as judges believe mandating vaccinations amid a global health crisis is reasonable.”

In Houston, for instance, 117 employees of Houston Methodist have filed a lawsuit by Attorney Jared R. Woodfill that states that employees should have freedom of choice to take the vaccine without “force, deceit, fraud, threat, solicitation, or any type of binding or coercion.” He said the mandate violates the Nuremberg Code and the public policy of the state of Texas, and that employees should not be forced to take an experimental vaccine.

Dr. Marc Boom, president and CEO of Houston Methodist, responded to the lawsuit with the following statement:

“It is legal for health care institutions to mandate vaccines, as we have done with the flu vaccine since 2009. The COVID-19 vaccines have proven through rigorous trials to be very safe and very effective and are not experimental. Over 165 million people in the U.S. alone have received vaccines against COVID-19, and this has resulted in the lowest numbers of infections in our country and in the Houston region in more than a year.”

The pandemic vaccine is a polarizing topic. One camp of citizens is filing lawsuits against their employees who are forcing them to get vaccinated as a condition of employment, while other employees are filing lawsuits against employers who are not requiring vaccinations. Businesses seem trapped in the middle, offering incentives for employees to get vaccinated for the good of the group. One thing is certain: the vaccine is effective and the number of Covid-19 cases and deaths has dropped significantly as more people get vaccinated.

Adnan Zai

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