More than 140 million Americans have been fully vaccinated against COVID-19, but the rate of vaccinations has dropped off in recent weeks, putting in jeopardy President Joe Biden’s goal of 70% of adults having taken at least one dose by July 4.
The Centers for Disease Control and Prevention (CDC) said last week that 63% of Americans have received at least one shot, but an analysis by USA Today projects that U.S. vaccinations will reach only 67% of adults by Independence Day.
While many states have offered incentives — from $1 million lotteries to tuition-free college to marijuana cigarettes (in a program dubbed “Joints for Jabs”) — some experts fear that the numbers will continue to flatten.
That brings up a major question: Can an employer mandate that employees take the vaccine or risk losing their jobs?
The Equal Employment Opportunity Commission (EEOC) said May 28 that businesses can indeed require that their employees be vaccinated against COVID-19 without violating federal law.
But in the updated guidance, the EEOC said employers must make “reasonable accommodations” for employees who don’t get vaccinated because of a religious beliefs, pregnancy, or a disability. The agency also said that other federal laws, such as the Americans with Disabilities Act (ADA), and state and local laws may play a factor in what businesses can do.
“Federal EEO laws do not prevent an employer from requiring all employees physically entering the workplace to be vaccinated for COVID-19, so long as employers comply with the reasonable accommodation provisions of the ADA and Title VII of the Civil Rights Act of 1964 and other EEO considerations. Other laws, not in EEOC’s jurisdiction, may place additional restrictions on employers. From an EEO perspective, employers should keep in mind that because some individuals or demographic groups may face greater barriers to receiving a COVID-19 vaccination than others, some employees may be more likely to be negatively impacted by a vaccination requirement,” the guidance says.
“The updated technical assistance released today addresses frequently asked questions concerning vaccinations in the employment context,” EEOC Chair Charlotte A. Burrows said in a statement. “The EEOC will continue to clarify and update our COVID-19 technical assistance to ensure that we are providing the public with clear, easy to understand, and helpful information.”
The EEOC also said businesses can offer incentives to employees to get vaccinated “as long as the incentives are not coercive.”
XpertHR, an HR compliance resource, notes that the EEOC cautions that employers must still provide reasonable accommodation for employees who are exempt from a vaccination mandate under the Americans with Disabilities Act and Title VII of the Civil Rights Act.
“The EEOC’s updated guidance also emphasizes the need for employers to be aware of the potential disparate impact of mandatory vaccination policies along the lines of race, color, religion, sex, age or national origin,” says Melissa Gonzalez Boyce, legal editor of XpertHR. “For example, because some individuals or demographic groups may face greater barriers to receiving a COVID-19 vaccination, a mandatory vaccination policy could disproportionately impact employees in those categories.”
But there’s another rub. The vaccines from Pfizer, Moderna, and Johnson & Johnson have never been fully approved by the Food and Drug Administration (FDA). Instead, they all received “emergency use authorization” (EUA).
The FDA explains it this way: “An Emergency Use Authorization (EUA) is a mechanism to facilitate the availability and use of medical countermeasures, including vaccines, during public health emergencies, such as the current COVID-19 pandemic. Under an EUA, FDA may allow the use of unapproved medical products, or unapproved uses of approved medical products in an emergency to diagnose, treat, or prevent serious or life-threatening diseases or conditions when certain statutory criteria have been met, including that there are no adequate, approved, and available alternatives. Taking into consideration input from the FDA, manufacturers decide whether and when to submit an EUA request to FDA.”
In FDA guidance on EUAs, the federal agency says it is required to “ensure that recipients are informed to the extent practicable given the applicable circumstances … that they have the option to accept or refuse the EUA product …”
Dr. Amanda Cohn, the executive secretary of the CDC’s Advisory Committee on Immunization Practices, was asked in October 2020 if COVID-19 vaccinations can be mandated. She said that under an EUA, “vaccines are not allowed to be mandatory. So, early in this vaccination phase, individuals will have to be consented and they won’t be able to be mandatory.”
But that’s for the federal government. Certainly, businesses cannot violate federal regulations, but until now, it’s been unclear what they can and can’t do regarding mandating COVID-19 vaccines.
The FDA’s guidance came as employees at a Texas hospital filed a suit over the facility’s mandate that they get vaccinated. Houston Methodist Hospital, which manages eight hospitals, gave employees until June 7 to get the vaccine or they could be suspended or fired, the lawsuit claims. So, 117 unvaccinated employees banded together and filed suit.
“Methodist Hospital is forcing its employees to be human ‘guinea pigs’ as a condition for continued employment,” the complaint states, according to The Washington Post.
The lawsuit noted that the U.S. Food and Drug Administration (FDA) has not fully approved the vaccines, instead issuing only emergency use authorization. They allege that the hospital is “illegally requiring its employees to be injected with an experimental vaccine as a condition of employment.”
The complaint also cites the Nuremberg Code, which “bans forced medical experimentations, again in effect arguing that the vaccine is experimental and potentially unsafe,” Fox News reported.
Attorney Jared Woodfill said the hospital is just trying to make money. “To promote its business and increase profits at the expense of other health care providers and their employees’ health, defendants advertise to the public that they ‘require all employees and employed physicians to get a COVID-19 vaccine,’” Woodfill told ABC News.
On Monday, the hospital released a statement, per KHOU:
Today is the deadline for Houston Methodist employees to comply with the mandatory COVID-19 vaccine policy. We are proud to report that almost 100 percent of our 26,000 employees have complied, making the right decision to fulfill their sacred obligation to protect our patients. Unfortunately, a few employees have not met the vaccine requirements and are inviting other employees to join them as they end their shifts today. We fully support the right of our employees to peacefully gather on their own time, but it is unacceptable to even suggest they abandon their patients to participate in this activity. We have faith that our employees will continue putting our patients first. It is unfortunate that today’s milestone of Houston Methodist becoming the safest hospital system in the country is being overshadowed by a few disgruntled employees.
Houston Methodist suspended 178 full-time and part-time workers without pay for the next 14 days for not complying with the hospital’s COVID-19 vaccine requirement. They risk termination if they do not get vaccinated.
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