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COVID Vaccine: Mandatory vs. Suggested Inoculation

Guest Article Provided by Jeffrey S. Baird, JD, Brown & Fortunato, PC,


The COVID pandemic is a game changer. As a country, we have not experienced such a phenomenon in more than 100 years. Over 300,000 Americans have died from the coronavirus, 50,000 of whom have died within the last 30 days. Since March 2020, over 57 million Americans have filed for unemployment compensation. More than 100,000 businesses have shut down.

And yet—finally—there is light at the end of the tunnel. The Pfizer vaccine is now in distribution and the Moderna vaccine will also soon be placed into distribution. The distribution of the vaccine raises an important question: Should employers require employees to take the vaccine as a condition of employment, or should employers only suggest/encourage its employees to take the vaccine? To date, there are no laws that directly address this issue.

And so, as of today, employers may mandate vaccinations…subject to EEOC and OSHA restrictions regarding (i) religious belief and (ii) concern about an underlying medical condition. There is a wrinkle as it pertains to employees who belong to a union. Before mandating a vaccination, the employer needs to review its Collective Bargaining Agreement to determine if there are any prohibitions/restrictions in the agreement regarding mandatory vaccinations.

Even though, subject to the EEOC/OSHA restrictions, an employer can mandate vaccination as a condition of employment, the employer may want to consider requesting/persuading employees to take the COVID vaccine…as opposed to requiring vaccination. For those employees who decline vaccination, the employer may want to offer accommodations: (i) working remotely; (ii) if the employee works at the office, then physically separate him/her from the vaccinated employees; or (iii) requiring employees to wear face coverings.

There are arguments to be made both ways when deciding whether to require or encourage employees to be vaccinated.  To read more on this important topic from Jeff Baird, click here for the full article in 12/21/20 Medtrade Monday.

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