Considerations in Mandating Covid-19 Vaccination
Can an employer mandate a Covid-19 vaccination of employees to return to work? There is no federal law specifically addressing that issue. The matter remains up to private businesses, state, or other local laws.
The Wall Street Journal reports that U.S. employers could require all workers physically entering a workplace to be vaccinated against Covid-19. The Equal Employment Opportunity Commission issued updated guidance stating that federal laws don’t prevent an employer from requiring workers to be vaccinated.
However, in some circumstances, federal laws may require the employer to provide reasonable accommodations for employees who, because of a disability or a religious belief, aren’t vaccinated. For example, the EEOC said as a reasonable accommodation, an unvaccinated employee entering the workplace might wear a face mask, work at a social distance or be given the opportunity to telework.
The new guidelines also say that federal laws don’t prevent or limit incentives that can be offered to workers to voluntarily take the vaccine. And employers that are administering vaccines to their employees may also offer incentives if the incentives aren’t coercive. However, employees can refuse the vaccine because they reasonably believe they have a medical condition that creates danger of serious illness or death (such as a serious reaction to the vaccine). In fact. they may be protected in a manner similar to how a whistleblower is under the law.
The number of companies requiring vaccination is growing. For example, Kroger announced on February 5 that it will provide a one-time payment of $100 to all associates who receive the full manufacturer-recommended doses of the Covid-19 vaccine. Darden Restaurants will provide a total of two hours of pay for each dose of the vaccine—up to four hours of total pay for complete vaccination. Amtrak recently announced its goal to have all its roughly 20,000 workers vaccinated for COVID-19. To encourage employees to get the shots, Amtrak is offering to pay them the equivalent of two hours of regular wages once they can show proof of vaccination. Amtrak also is allowing workers to take excused absences to recover from any side effects they might experience within 48 hours of receiving the shots. Trader Joe’s will offer its workers two hours of their regular pay for each dose of the Covid-19 vaccine they receive. Trader Joe's will also let workers adjust their schedules to accommodate vaccine appointments.
The EEOC noted that it would be unlawful to apply a vaccination requirement in a way that treats employees differently based on disability, race, color, religion, sex, national origin, or age. It also stated that state and local laws may also govern vaccination requirements.
Marc Freedman, vice president of employment policy at the U.S. Chamber of Commerce, said the guidance should also help ease individuals’ fears about returning to the workplace.
“To the extent that employees are concerned that coming back to the workplace will put them at risk of getting Covid-19, anything that helps an employer get more employees vaccinated will help make the case that the workplace is safe,” Freedman said.
Freedman was pleased the EEOC had clarified that employers can offer vaccination incentives without confronting legal issues. But, he said, the EEOC’s guidance also said that incentives are acceptable if they aren’t “coercive”—a term whose meaning, Freedman said, wasn’t clear. That could “expose employers to challenges from employees who don’t wish to be vaccinated.”
We can look at a vaccine requirement from an ethical point of view. Employees should have a right to choose whether to be vaccinated? Mandating a vaccination is a bridge too far unless being vaccinated is necessary for health or other reasons in the workplace.
I fear a vaccination requirement could awaken the cancel culture. Those who choose not to be vaccinated could be isolated by those who were vaccinated. The vaccinated may come to believe allowing unvaccinated workers back into the workplace could put them at danger of getting the virus. After all, the vaccine is not full proof. The cancel culture might seek to isolate the unvaccinated workers from the rest of the employees in the workplace. Taken to an extreme, bullying might occur creating a danger to the mental health of the unvaccinated workers.
Posted by Dr. Steven Mintz, The Ethics Sage, on June 10, 2021. You can sign up for his newsletter and learn more about his activities at: https://www.stevenmintzethics.com/. Follow him on Facebook at: https://www.facebook.com/StevenMintzEthics and on Twitter at: https://twitter.com/ethicssage.