Yes, Virginia, There Is a Vaccine: But Can the Boss Make You Take It?

One of our avid readers writes in and asks:

Dear Mark and Bill: Some of my little friends say there is no Santa Claus, there is no Dr. Fauci and there is no vaccine and even if there is, my boss can’t make me take it. I need to know cause I’m fraidy scared of needles and other sharp things besides those thin mechanical pencils, they’re really cool. Papa says if you see it in Mark and Bill’s alert, it’s so. Please tell me the truth.  Bob from Accounting

Bob, your little friends are wrong. They’ve been affected by the skepticism of a skeptical age. Yes Bob, there is a vaccine and your boss can make you get it, even if you’re fraidy scared. 

In fact, in 1905, not long after a little girl named Virginia wrote to the editor of The Sun with some of the same questions you’ve asked, the U.S. Supreme Court upheld a Massachusetts law that allowed cities to require everyone to be vaccinated against smallpox in the interest of public health. When one city ordered all citizens to be vaccinated, a pastor refused, claiming, not a religious objection but an allergic one. He was fined $5 (about $150 to you and me) and sued. The big court said, in much fancier words than these: we can’t have true liberty if everyone makes their own decisions about public health without regard to the impact on others—so roll up your sleeve pastor, for the sake of your flock. And that decision remains the law of the land. Currently, the NYS legislature is mulling a mandatory statewide COVID-19 vax law. One more piece of history: for those like us, who thought the anti-vax movement is new, the Anti-Vaccination Society of America started in 1879 and a similar one in 1908, claiming that after defeating religious and political tyranny, the country cannot fall to medical tyranny. So it turns out, nothing is new!

More recently, like last week, the EEOC issued a 6 page guidance, sort of clarifying the parameters under which employers can require employees to be vaccinated. Employers are permitted, and under other laws obligated, to ensure that employees not pose a direct threat to the health or safety of co-workers or the public. According to the guidance, a direct threat assessment requires consideration of the: (1) duration of risk; (2) nature and severity of the potential harm; (3) likelihood that potential harm will occur; and (4) imminence of potential harm. Under the current state of the pandemic, it sure seems likely that all those boxes are checked and an employer would be on firm ground claiming that an unvaccinated employee will pose a direct threat of harm. There are two legally recognized exceptions which have been invoked for years in response to employer mandated flu vaccines: medical and religious objections. Let’s focus on the medical.

If an employee refuses to get vaccinated, then under the EEOC guidance, an employer that has a reasonable belief that unvaccinated employees pose a direct threat can inquire as to the reason. If the objection is based on a medical excuse, the employer is entitled to proof. Even with medical evidence recommending against vaccination, the guidance states:

The employer cannot exclude the employee from the workplace or take any other action unless there is no way to provide a reasonable accommodation (absent undue hardship) that would eliminate or reduce the risk so the unvaccinated employee does not pose a direct threat.

The tough question is what accommodations can be made for an unvaccinated employee that will reduce or eliminate the direct threat. We resort to a lawyer’s favorite answer: it depends. It depends on the nature of the job. If an unvaxed employee stands on an assembly line or rides in the cab of a truck with a co-worker, maybe there is no way to mitigate the threat. Then again, if everyone else is vaccinated, maybe there is minimal potential spread even if that unvaxed employee does carry the virus. In other kinds of jobs though, employees can be assigned to private work spaces and treated much like those with high risk conditions. The guidance also makes clear that even if there is no reasonable onsite accommodation available, that does not mean an employer can automatically terminate an unvaccinated employee. Remote work, where practical, must also be considered.  Oh Bob, this is confusing!

What you have not asked Bob, is whether your boss should require you and your co-workers to get vaccinated. This too is not an easy question. According to a recent Pew Research survey, only about 60% of Americans say they’ll get jabbed. and we think many of them intend to wait to see if those who go first have appendages fall off. And no joke, some have already had bad reactions. The immunity experts though say that the vaccine will not achieve the herd immunity necessary unless a substantial majority of the population get vaccinated. Some sources report that at least 70% must receive the shot but the CDC says that nothing is definite. For example, to eradicate measles, 95% of the population needed to be vaccinated. So if 40% of us take a pass, maybe the vaccine won’t put out the fire. Making it a condition of continued employment though might do the trick. It could even be good for business; at least consumer-facing businesses. It certainly would be unique marketing to let it be known that all of your employees have been vaccinated. 

Yes Bob, there a vaccine and your boss can make you get it.  There is also a Santa Claus and a Dr. Fauci too. And we want you to know that you have nothing to worry about because earlier this week, Dr. Fauci went to the North Pole and gave Santa a COVID-19 vaccine himself so that Santa could come down your chimney spreading only joy and not germs. A thousand years from now, Bob, nay, ten times ten thousand years from now, he will continue to make glad the heart of childhood.

Happy Holidays to all and to all a good night!

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