Northern Michigan Law Articles

WASHINGTON (AP) — The U.S. Department of Veterans Affairs. The state of California. New York City. Hospitals and nursing homes. Colleges and universities. Employers are putting COVID-19 vaccine requirements into place and it’s getting attention. But what happens if workers refuse?

Federal guidance out this week suggests the law is on the side of employers. Vaccination can be considered a “condition of employment,” akin to a job qualification. That said, employment lawyers believe many businesses will want to meet hesitant workers half-way.

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The U.S. Justice Department addressed the rights of employers and workers in a legal opinion this week. It tackled an argument raised by some vaccine skeptics that the federal Food, Drug & Cosmetic Act prohibits employers from requiring vaccination with shots that are only approved for emergency use, as coronavirus vaccines currently are.

Department lawyers wrote that the law in question requires individuals be informed of their “option to accept or refuse administration” of an emergency use vaccine or drug. But that requirement does not prohibit employers from mandating vaccination as “a condition of employment.”

The same reasoning applies to universities, school districts, or other entities potentially requiring COVID-19 vaccines, the lawyers added. Available evidence overwhelmingly shows the vaccines are safe and effective.

The Justice Department opinion followed earlier guidance from the federal Equal Employment Opportunity Commission that federal laws prohibiting discrimination in the workplace “do not prevent an employer from requiring all employees physically entering the workplace to be vaccinated for COVID-19.”     

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IS THERE ANY OTHER ALTERNATIVE TO MANDATES?

Instead of requiring vaccines, some companies are trying to entice workers by offering cash bonuses, paid time off and other rewards. Walmart, for example, is offering a $75 bonus for employees who provide proof they were vaccinated. Amazon is giving workers an $80 bonus if they show proof of vaccination and new hires get $100 if they’re vaccinated.

WHAT ARE THE OPTIONS FOR EMPLOYEES IF THEY DON’T WANT TO TAKE THE VACCINE?

Most employers are likely to give workers some options if they don’t want to take the vaccine. For example, New York City and California have imposed what’s being called a “soft mandate” — workers who don’t want to get vaccinated can get tested weekly instead.

If an employer does set a hard requirement, employees can ask for an exemption for medical or religious reasons. Then, under EEOC civil rights rules, the employer must provide “reasonable accommodation that does not pose an undue hardship on the operation of the employer’s business.” Some alternatives could include wearing a face mask at work, social distancing, working a modified shift, COVID-19 testing or the option to work remotely, or even offering a reassignment.

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A recent legal decision may help move the needle. In June, a federal district court in Texas rejected an attempt by medical workers to challenge the legality of Houston Methodist Hospital’s vaccine mandate. The court found such a requirement in line with public policy.
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Dorit Reiss, a law professor who specializes in vaccine policies at the University of California Hastings College of the Law, said “more businesses will have confidence they can mandate the vaccine.”

She believes most companies will go the route of a soft mandate, with alternatives for employees who remain reluctant.

“I think it’s a reasonable option,” she said.