Your employer might be well within its rights to impose a mandatory COVID-19 vaccination policy — but it’s far more likely to try promoting and facilitating worker immunization before wielding that power, legal experts say.
A safe, effective COVID-19 vaccine has not yet been approved. Seven vaccine candidates in the U.S. are in the clinical-trial phase with human participants, including four candidates — AstraZeneca AZN, -0.85% in partnership with the University of Oxford, BioNTech BNTX, 8.27% and partner Pfizer PFE, -0.14%, Moderna MRNA, 2.57% and Johnson & Johnson JNJ, -0.36% — that are in Phase 3 clinical trials, the final and most critical stage.
Meanwhile, a declining share of people have expressed intent to take a coronavirus vaccine. Just 51% of U.S. adults say they would “probably” or “definitely” get a COVID-19 vaccine if it were available to them today, according to a Pew Research Center survey conducted Sept. 8 to Sept. 13 — a 21-percentage point drop from May. Three in four respondents said it was “somewhat” or “very” likely that a vaccine would be used before its safety and effectiveness were fully understood.
As employers seek to reopen brick-and-mortar workplaces and restore some semblance of normalcy, they may wonder whether it makes sense to mandate coronavirus vaccinations to protect employees’ and customers’ health, and reduce the likelihood of transmission on the job.
Randi Weingarten, the head of the American Federation of Teachers, recently told Axios that her union would support the notion of school districts requiring teachers to take a Food and Drug Administration-approved COVID-19 vaccine in order to teach in schools, “just like we have vaccines that we require kids to take to be in school in normal times.”
‘Constitutional restrictions simply do not apply to private employers’
So is your employer even allowed to mandate that you receive a COVID-19 vaccine before returning to a physical workplace?
“The short answer is yes,” Debbie Kaminer, a law professor at Baruch College’s Zicklin School of Business, told MarketWatch. “Employers have significantly more freedom when it’s an employer just enacting its own policy, and it’s not a government-mandated policy — because constitutional restrictions simply do not apply to private employers.”
Sahar Aziz, a professor at Rutgers Law School, agreed. “Legally, it will be difficult for you to refuse to take it, and still be able to go to work to that particular job,” absent any government action, she said.
But employers can’t mandate a vaccine across the board, she added: There must be accommodations for employees based on…
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