With Emergency Approval of a Vaccine, Will I Have to Vaccinate?

Pfizer-BioNTech (“Pfizer”) and Moderna, and Johnson & Johnson vaccines have been authorized for emergency use by the United States Food and Drug Administration (“FDA”). Due to the unprecedented speed of the vaccine approvals and release, some people are asking, “is it safe, and do I have to vaccinate,” which creates further issues as employers are seeking to have employees return to their offices in 2021.

COVID-19 Vaccines Issued Emergency Use Authorization

As we have passed the anniversary of the first diagnosed case of COVID-19 in the United States and the virus continues to spread, many wonder how and when the pandemic will ever end. In May of 2020, the Federal government launched Operation Warp Speed to accelerate the development and manufacturing, and distribution of vaccines in an effort to end the pandemic. By December, Pfizer and Moderna had interim data that suggested their vaccines were safe and effective at preventing symptomatic COVID-19 and both were issued Emergency Use Authorization (“EUA”). The vaccine produced by Johnson & Johnson was approved for EUA on February 27, 2021. EUA is a mechanism to facilitate the availability and use of medical countermeasures, including vaccines, during public health emergencies, like the COVID-19 pandemic. Under EUA, the FDA may allow the use of unapproved medical products in an emergency to diagnose, treat, or prevent serious or life-threatening diseases, particularly when there are no adequate, approved or available alternatives.

Supreme Court Rulings

Whether to get vaccinated or not is ultimately a personal choice. It is an individual’s right to choose what is best for his or her body. One of the first cases to consider a State’s police powers in relation to vaccinations was Jacobson v. Massachusetts, where a defendant challenged the compulsory vaccination program for smallpox, on the basis that it was an unreasonable invasion of his liberty. The Massachusetts Supreme Court held the vaccination program was constitutional, and the United States Supreme Court “affirmed, ruling that the vaccination program had a real and substantial relation to the protection of the public health and safety.”

However, “in the eleven decades since Jacobson, the Supreme Court has refined its approach for the review of state action that burdens constitutional rights.” Most cases related to the balance between individual rights and constitutional protection deal with “personal decisions relating to marriage, procreation, contraception, family relationships, child-rearing, and education.” While vaccines are preventative, and employers understand that they can mandate COVID-19 vaccinations in order for their employees to return to work, many question if a vaccination mandate will soon be forced upon us by the government. “Under the federalist system of the United States, state governments have the general authority, within constitutional limits, to enact laws ‘to provide for the public health, safety, and morals’ of the state’s inhabitants.” States’ general police powers to promote public health and safety encompass the authority to require mandatory vaccinations or suffer the withdrawal of certain rights and privileges. The right of state and local authorities to enact legislation for children to attend school has long been established. Each state provides medical exemptions and some state laws also offer exemptions for religious and/or philosophical reasons.

Will Employers Mandate The Vaccine?

An employer may require that an employee obtain a vaccine before returning to work or continuing to work. However, should an employer require vaccinations, “they must: (i) exercise due care in administering it; (ii) refrain from asking any unnecessary screening questions; (iii) keep confidential any medical information received from their employees; and (iv) be prepared to engage in an interactive process with employees who request accommodation or seek exemption from being vaccinated for health-related or religions reasons.” The United States Equal Employment Opportunity Commission provides, through a series of guidelines to employers, what is permissible when requiring an employee to obtain a vaccination. Employers must continue to comply with the Americans with Disabilities Act contained in Title VII of the Civil Rights Act of 1964 and any other workplace law.

Although most employers understand that they can require that employees get the vaccine, before returning to work, the question is, should they? And if so, what should that policy look like in terms of exceptions or accommodations? What about those who object because of religious beliefs? What about an employee who is pregnant or wishes to become pregnant in the near future? What proof of vaccination should be required? With the latest polls showing that 50% of Americans do not want or intend to get the vaccine, what are employers to do with employees who decline?

Currently, it appears that many employers are opting to “recommend” rather than “require” the COVID-19 vaccination. However, a very recent national telephone survey conducted by PNC Bank among 500 small and mid-sized businesses showed that 48% plan to require employees to be vaccinated, 22% expect to provide incentives to staff who vaccinate, and a third will provide education to personnel about vaccination.

The first phase of the vaccination roll out was for healthcare personnel, seniors over 65, residents and employees or assisted living facilities and nursing homes, and people with certain high-risk health issues, and while many have chosen to obtain the vaccine, the conversation now turns to whether employers should mandate that employees get the vaccine. Many healthcare workers were provided the option to forego the vaccination without detriment or recourse to them or their position. There really is no right or wrong option. It seems the best an employer can do is to decide what works for their employees and those they serve.

Questions Remain

And finally, while private employers can require vaccination prior to employees returning to work, and schools and colleges can require vaccination prior to returning to the classroom, still more questions will arise as we move forward with voluntary vaccinations. Will we distinguish between those who have received the vaccination and those who have not? Will businesses be permitted to cater only to people who have been vaccinated? Will state and local governments mandate that people self-identify if they have not received a vaccine, and to what consequence? Moving forward, will we be required to carry proof that we have been vaccinated in order to enjoy certain rights and privileges? These are all questions that will have to be sorted out in the court system in the months and years to come.

Dan Lynch advises companies in a wide variety of labor and employment matters. Please contact Dan at (724) 776-8000 or dlynch@lynchlaw-group.com with your questions and concerns about the impact of COVID-19 on your business.
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