Can my boss make me get a COVID-19 vaccine? The answer is complicated

February 14, 2021

Yes, your boss can require that you get a COVID-19 vaccination.

Will they? That’s a more complicated answer, influenced by who you are, what you do, where you work and how badly you’re needed. And there are exceptions.

It’s still early, of course, with not enough doses for most working Californians. But as vaccine distribution expands, companies are racing to design the policies needed to open, get back to business and prevent fatal, on-the-job contagion – while not losing valuable employees who refuse to get a shot.

“By and large, everybody is trying to do the best they can to keep places safe and operating effectively,” said Bay Area labor lawyer Bill Sokol. “This means trying to be as creative as possible while making sure that the work gets done.”

The Occupational Safety and Health Administration requires that employers provide a safe workplace. Private businesses have the right to fire anyone, as long as they don’t discriminate based on race, gender, age and other protected categories.

And while there is currently no law or regulation that directly addresses mandatory COVID-19 vaccines, there is legal precedent. Last December, the U.S. Equal Employment Opportunity Commission issued guidelines that said employers can require workers to get a COVID-19 vaccine before physically returning to the workplace — although workers can request medical or religious exemptions.

In response, employers are quickly enacting a broad spectrum of policies, which vary based on risk.

Vaccines are most often mandatory for those working in child and elder care – where infecting a client or colleague can have tragic consequences.

They’re generally not required by businesses whose workers can socially distance, wear masks or work remotely, such as Facebook, Google and other tech companies.

But in that vast in-between – where many of us spend our 9-to-5 days — most employers are taking a compromise position. While not mandating a jab, they are encouraging vaccinations through a carrot-and-stick approach that combines education, recommendations, incentives and restrictions.

For instance, the University of California’s medical centers keep a list of workers who are unvaccinated. These workers also must submit a “Vaccine Declination Statement,” wear personal protective equipment and may be reassigned.

There’s precedent: Vaccines for other infectious diseases are required to protect public health. Many health care companies require flu vaccines. Schools require vaccines against measles, mumps and rubella. Tuberculosis tests are typically required for jobs in health care, education, and social services.

But critics note one major difference: The COVID-19 vaccine is not yet approved by the U.S. Food and Drug Administration; it is only “authorized,” pending further study. Critics assert that they’ll hold employers legally responsible for any adverse reactions.

Attorneys offer two rebuttals. That regulatory distinction likely won’t matter to the courts, they say. And any reaction, if linked to the vaccine, would simply trigger a workers’ compensation claim.

This doesn’t mean your employer has carte blanche to fire you. If you claim a medical or religious exemption, they first have to show that you pose a direct threat to the worksite. Then they must consider whether a reasonable accommodation – such as working remotely – is possible.

Those accommodations come easy in some jobs; in others, they’re impossible. In Hollywood, for example, “if your specific duty is to act in a crowd scene in a movie, there’s no way to accommodate you,” said Sokol. “On the other hand, if your job is to be a film editor, you can sit at home.”

This week, a major survey by Littler, the world’s largest employment and labor law practice representing management, found that most employers are unlikely to mandate COVID-19 vaccination.

Nearly half, or 48%, of those surveyed have already decided against the requirement; 43% said they were still considering it and about 7% are either requiring it or plan to, once vaccines are readily available or are fully approved.

Of reluctant companies, 67% said they worried about a mandate’s impact on employee morale, company culture and staffing, 64% fear legal liability if an employee suffers an adverse reaction and 47% disliked the administrative challenges of implementing a mandate. Most hoped to simply encourage vaccination, while also offering remote work and maintaining safety protocols.

“Most employers depend on their workers,” said Sokol. Consider an auto dealership, he said. If it loses an unvaccinated mechanic, “suddenly they have an open bay, and can’t keep up with the business.”

Surprisingly, members of the military aren’t required to get vaccinated, although that could change once the FDA issues formal licensure.

Could an employer be sued if one of their unvaccinated workers infects a client, customer or colleague? While possible, it’s hard to imagine, said Sokol. To be successful, a plaintiff would need to prove that they were sickened by one specific person in our virus-filled world. That’s a tall order.

While at least 10 states have proposed bills prohibiting private employers from mandating that their workers be vaccinated, such efforts are ill-conceived and unwise, said bioethicist Art Caplan of the NYU School of Medicine.

“Workers have a right to a safe workplace,” he said. “Customers may also want a safe environment, and may prefer businesses that offer it.”

Anxious about their patients’ health, the elder care companies Atria Senior Living and Aegis Living are requiring worker vaccines as soon as they are widely available. They make exceptions for workers who are pregnant or have other compelling reasons to decline.

“Taking the vaccine, in our view, is the highest act of helping our fellow human beings,” said John Moore, CEO of Atria Senior Living, which is requiring that all employees of its 43 California facilities take both doses of the vaccine by May 1.

Home care agencies such as Home Health Bay Area, which sends caregivers to the bedside, say they are now weighing the risks and benefits of such a policy.

But places that serve more independent seniors, who don’t share housing, are taking a wait-and-see approach. With apartment-style communities for active elders, Covia isn’t requiring staff vaccines. Nor is Walnut Creek’s Rossmoor, with 6,700 homes on 1,800 acres, “although this may change in the future depending on guidance from public health officials and any requirements mandated by changes in local, state or federal laws,” said CEO Tim O’Keefe.

Some families who hire nannies are adding a “COVID-19 Safety Protocol” clause to their contracts, requiring vaccines and testing, according to The Nanny League, a Los Angeles-based company that provides child care and tutoring to A-list families. The nanny will take COVID-19 tests and wear masks, it states, and get the vaccine as soon as it is made available to them.

Adventure Nannies, which serves active and traveling families, says it also gets requests for vaccinated child care help.

“As with any decisions impacting families and household staff, it is important to approach the conversation with clarity and kindness,” said Danielle Sadler of Adventure Nannies.

COVID shots may be requested or required for anyone seeking a job as a chef, housekeeper, estate manager, elder care or child care provider with The Help Company. Most job candidates are voluntarily vaccinated, according to company spokesperson Melissa Jensen.

But some companies are trying a softer approach.

Starbucks offers up to two hours of paid time off for each shot. At Amtrak, vaccinated employees get a bonus, the equivalent of two hours of pay, as well as paid time off for the appointment and any absence due to side effects. Facebook, like other tech companies, has less public contact and isn’t mandating vaccines. As workers start to return to the office after July, “we have a number of protocols in place that include testing, physical distancing, wearing masks and other best practices,” said spokesperson Chloe Meyere.

Most major medical centers —  including Cedars Sinai, Stanford, Kaiser, John Muir and UC San Francisco, Los Angeles and Irvine — are recommending, not requiring, vaccines. Masks are required at all facilities.

Voluntary compliance has been high, they report. So far, vaccines have been given to about 70% of the workforce at Stanford Medicine; 71% at UCLA; 77% at UCSF; 80% at John Muir and 89% at UC Irvine. The rate is far higher among employees with regular patient contact – for example, 97% of UCLA’s medical residents are vaccinated.

Once shots are available, most school districts — including in Santa Cruz, San Mateo, Santa Clara, Alameda, Contra Costa and Orange counties — say they’ll only require that staffers participate in surveillance COVID-19 testing, at a minimum of once every two months, as required by the state.

The one major exception is Los Angeles, where superintendent Austin Beutner asserts that once COVID-19 vaccines are available, both teachers and students will have to be immunized before they can return to campus. With 25,088 teachers and 50,586 other employees, it is the second-largest employer in Los Angeles County, after the county government.

“A vaccine can mitigate the risk to teachers, cafeteria workers, bus drivers, librarians and others,” he said, adding that a TB vaccine is required, yet COVID-19 poses a far greater threat. “We have a responsibility to create an environment that’s as safe as possible.”

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