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Employers face potential vaccination questions

Now that effective vaccines for the coronavirus will soon become available in a rollout that looks likely to last most of next year, legal questions start to arise.

Such as: Should we let restaurants open at full capacity, so long as inside tables are reserved for people who can prove they’ve received both shots?

Similarly, should airlines be allowed to offer flights limited to the vaccinated? Should hotels set aside whole floors for the vaccinated only? Such programs would take a lot of worry out of travel, which in turn would help to revive tourism, one of New Mexico’s most important industries.

Vail Health Hospital pharmacy technician Rob Brown practices measuring the exact dosage for a mock COVID-19 vaccine in the sterile compounding room in the hospital’s pharmacy in Vail, Colo. (Helen H. Richardson/The Denver Post)

But such plans would work only if diners, travelers and hotel guests had some reliable way of proving they’re vaccinated. Something like a driver’s license, hard to forge and connected to a database.

Like you, I’m deeply suspicious of all forms of governmental surveillance. But guess what? Everyone getting a vaccine will be surveilled anyway. “Every dose administered will be reported to the U.S. Centers for Disease Control and Prevention,” according to an expert interviewed by CNN.

Some states are reportedly resisting the federal data collection effort. But those states will maintain their own immunization registries.

One way or the other, our information will go into government databases. But instead of providing reliable proofs of vaccination, the federal government will distribute little paper cards – intended to be filled out by the nurses and pharmacists who administer the shots, but easily forged.

A Gallup poll from late September revealed that 45% of Americans strictly observed social distancing. They avoided crowds, public places and also small gatherings. By doing so, they lowered their risk of infection so much that immunity would hardly have lowered it more.

Collectively, the actions of those most conscientious Americans produced an overall effect comparable to a vaccine that is 45% effective. Or a 90% effective vaccine taken by half the population.

And yet that wasn’t nearly enough to stop the fall surge. To obtain the full economic liberation promised by our 90% effective vaccines, then, we’re going to need a lot more than half of the population to get vaccinated.

No business owner needs to be reminded that a workplace COVID-19 outbreak is a crisis with the potential for catastrophe. Given the stakes, both social and financial, can an employer require employees to get vaccinated as a condition of continued employment?

Allow me to give a very lawyerly answer to that question: Maybe sometimes.

One huge potential obstacle, perhaps ironically, is the Americans with Disabilities Act. The ADA covers private employers with 15 or more employees.

In a case involving a health care worker who refused the rubella vaccine, the federal 8th Circuit Court of Appeals explained that “it is not necessary that an applicant be disabled to bring a claim” under the ADA, which broadly protects individuals from discrimination based on medical issues.

Specifically, the ADA prohibits employers from requiring vaccinations “unless the employer can demonstrate they are ‘job-related and consistent with business necessity.'” That standard was met with the particular plaintiff, who worked with medically fragile patients. It’s easy enough to see how it’s met with food servers, too.

But with regard to other industries, there’s room for debate, which means room for litigation. Until we have cases or administrative rulings to guide us, it’s tough to predict how this standard will apply to COVID-19 vaccinations.

When an employee has religious objections to vaccination, the Civil Rights Act generally requires the employer to provide reasonable accommodation. The Vanderbilt University Medical Center website has a helpful list of denominations that oppose vaccination. But the real controversies come from unorthodox beliefs.

For example, a California vegan who worked for a hospital refused to get an egg-based flu vaccine. He contended that veganism, a strict system of ethical rules, was a religion. In Arkansas, a woman who didn’t belong to any church spoke with angels, one of whom warned her against vaccinations. She claimed her resulting distrust was a religious belief.

These are the kinds of disputes that find their way into the law books – and heaven (or its nonsectarian equivalent) help the employer faced with deciding whether an employee’s beliefs are truly religious. (The California dude lost. The Arkansas lady carried the point, only to lose her case on other grounds.)

My advice would be to avoid the argument and go straight to the reasonable accommodation: Masks, hand sanitizer, plexiglass, ventilation and everything else we’ve almost gotten used to.

An employer can avoid all these potential legal pitfalls by taking a positive approach, encouraging vaccination rather than punishing non-vaccination. Given what we’ve heard about the unpleasant but short-lived side effects experienced by some participants in the phase III trials for the vaccines, giving a day off to those who get the shots might be a highly suitable inducement.

Joel Jacobsen is an author who in 2015 retired from a 29-year legal career. If there are topics you would like to see covered in future columns, please write him at legal.column.tips@gmail.com.

 

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