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The fine print

Could getting vaccinated be a back-to-the-office requirement?

Andrey Rudakov/Bloomberg

With COVID-19 vaccines expected to become gradually more available in the new year, employers and employees are beginning to ask questions about what that means for the workplace.

Q. Can my employer force me and my coworkers to get the vaccine?

A. Right now, there’s no definitive federal law, regulation, or guidance on whether employers have the legal right to condition continued employment on getting the coronavirus vaccine.

Q. Have there been times in the past when mandatory vaccinations were deemed legal?

A. Yes, there is precedent for workplace mandatory vaccinations. When the H1N1 influenza pandemic hit in 2009, the Equal Employment Opportunity Commission, which enforces federal laws that make it illegal to discriminate in the workplace, advised employers that mandatory vaccinations were legally allowable.

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Although the EEOC has not explicitly approved mandatory vaccinations in the workplace for COVID-19, it did endorse the “principles” it developed during the H1N1 pandemic in an update it posted on its website earlier this year in response to the coronavirus outbreak.

Q. Did the EEOC recognize any exceptions to mandatory vaccinations?

A. Yes, it cited the American with Disabilities Act for exceptions for employees who refuse the vaccine for medical reasons and the Civil Rights Act of 1964 for exceptions for employees with religious reasons.

Q. How are employers expected to handle those who refuse the vaccine for medical or religious reasons?

A. Employers are required to make reasonable accommodations for employees citing a medical objection to the vaccine, like allowing them to work from home or otherwise apart from other employees. An employer may deny such an accommodation, however, it if it deemed to present an “undue hardship.” Employers may required those invoking a medical reason to provide documentation of their disability.

The standard for religious exception is a “sincerely held religious belief,” rather than personal or ethical objections, such as an antivaccination position.

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Q. Is there any reason to expect the EEOC to treat COVID-19 vaccinations differently?

A. No. The coronavirus is much more deadly than the H1N1 flu was in 2009. Therefore, mandatory vaccinations for COVID-19 may be the norm.

Q. So the EEOC is in favor of mandatory flu vaccinations?

A. No, actually, the EEOC favors employers encouraging flu vaccinations, rather than requiring them, which may be the approach it takes as well to COVID-19. The EEOC reasons that employers are more likely to get employees vaccinated with incentives, like gift cards and refreshments at on-site mini-clinics, than with disincentives, like termination.

Q. Does the state have any say in mandatory vaccinations?

A. The EEOC says employer-mandated vaccinations program must be consistent with state law.

Q. Is there any Massachusetts law standing in the way?

A. No. And in fact, the Baker administration last summer showed his support for vaccinations generally when the Department of Public Health, which has the authority to establish what immunizations are required for school enrollment, ordered that nearly all students in the state under the age of 30 get a seasonal flu vaccine by the end of this year. That made Massachusetts the first state in the country to do so. The purpose was to reduce the overall strain on the health care system by reducing flu cases. Enforcement is in the hands of local school districts and higher-education institutions.

Massachusetts boasts of having the highest flu vaccination coverage in the country for those age 17 and younger: About 81 percent got the vaccine during the 2018-2019 flu season.

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Q. What does the Centers for Disease Control and Prevention say about workplace vaccines?

A. The CDC strongly advocates for employers offering free on-site seasonal flu vaccinations in the workplace. It makes no similar case for workplace vaccinations for COVID-19, but that could change.

Q. Doesn’t it make sense to require front-line health care workers and others to get vaccinated?

A. Probably. An advisory committee to the Centers for Disease Control and Prevention recently put health care workers, including those at hospitals and nursing homes, at the top of its list for risk of COVID-19 exposure and transmission. It said: “Early protection of health care personnel is critical to preserve capacity to care for patients with COVID-19 or other illnesses.”

There is precedent for mandatory vaccination of health care workers. Mass General Brigham, for example, already requires all employees, including those working remotely, to get a seasonal flu vaccine unless they are approved for a medical or religious exemption.

The CDC has made available this comprehensive guidance for employers and others on implementing flu vaccines.

Q. What other kinds of jobs may be subject to mandatory vaccinations?

A. First responders and retail and service workers who interact with the public.

Q. Can I refuse to work with others on my job if they haven’t gotten the vaccine?

A. Employers have an obligation under OSHA to provide a workplace free from serious recognized hazards, which includes COVID-19. You have a legal right to contact OSHA, without fear of retaliation, if you have concerns. But be aware that OSHA last spring said it would leave it to employers to investigate some complaints, while conducting few inspections.

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