Can US employers order workers to get the coronavirus vaccine?

Sign up for the Guardian Today US newsletter

The first Covid-19 vaccines are now going into the arms of Americans and an end to a pandemic that has cost 300,000 lives in the US and devastated large parts of the economy is in sight. But getting back to “normal” will be a monumental task and employers are now struggling with a big question: can they order workers to get vaccinated?

Vaccinating a whole country – especially one as large as the US – was always going to be a massive undertaking. But it’s not just the logistics that are causing issues: many Americans are hesitant about getting vaccinated at all.

A Pew Research Center poll released 3 December found that 60% of Americans said they definitely or probably would get the vaccine if one were made available immediately, a noted rise since the same question was posed in September. That figure is well under the 75% to 80% vaccination rate public health experts say the country would need to meet in order for herd immunity to go into effect.

While the vaccine will only be available to the majority of Americans by summer 2021 at the earliest, the coming months may see serious debate over whether businesses, including hospitals and long-term care facilities, should mandate the vaccine for their employees to ensure things can go back to normal as quickly as possible.

Employers, particularly in sectors that have been radically changed by the pandemic, have shown an eagerness to get their workers vaccinated. The National Restaurant Association and other food and agricultural organizations wrote a letter to Donald Trump and Joe Biden asking them to prioritize getting food workers vaccinations “to ensure the agricultural and food supply chains remain operating”.

Randi Weingarten, the president of the American Federation of Teachers, one of the largest teachers unions in the country, has also said that the union supports schools requiring teachers to get vaccinated, saying it is “just like we have vaccines we require kids to take to be in school in normal times.

“We want to be back in school buildings. Place is important when it comes to education” she told Axios.

‘There are many roadblocks’: Fears grow over US Covid-19 vaccine rollout

Read more

And in the private sector other bosses are hoping to get all their staff vaccinated. Daniel Schreiber, the CEO of Lemonade insurance company, wrote on the company’s website that he will be trying to get a 100% vaccination rate at the company. While he said the company will not enforce vaccination, he wrote: “A corporate directive, coupled with educational sessions, can inject the urgency and reassurances needed to move the needle.”

Employers generally have the right to require employees to get vaccinations. Employment in the US is typically at-will, which means an employer can fire an employee for any reason as long as it does not have to deal with an employee’s protected identity, for example, an employee’s race or religion. Barring some religious and health-related exemptions, private businesses have the specific right to maintain their own health and safety standards and are legally able to fire employees who violate their rules, including if they do not get certain vaccines.

Vaccine mandates in the US are not unheard of. Hospitals have long mandated the flu vaccine for their employees as healthcare workers can transmit the flu virus to high-risk patients even if they do not show symptoms. Fifteen states have laws that require healthcare workers to be vaccinated in certain circumstances with the goal of keeping high-risk patients safe, according to Johns Hopkins Medicine. All states have mandated vaccines for children against diseases such as polio and measles in order for them to enroll in school as a way to achieve herd immunity for those diseases.

What complicates a Covid-19 vaccine requirement is that the vaccine has been approved for emergency use, which means the vaccine is still considered experimental. Things will be different when and if the vaccines get full regulatory approval – Pfizer announced that it will apply for full approval in April 2021 – but the timeline for when the immunizations will be fully approved by the Food and Drug Administration (FDA) is unclear. For now, the rights of employers to mandate a Covid-19 vaccine will be in a legal gray area for the indefinite future.

The act that allows for emergency use approval says there must be “appropriate conditions” that allow individuals who are administered the product to refuse the product, said Dorit Reiss, a law professor at the University of California Hastings school of law. But the law also suggests that the secretary of health and human services, Alex Azar, has the ability to allow consequences for refusing the vaccine.

Because the wording of the act is unclear and does not specify a ban on mandates, “I expect some employers will go ahead and mandate [the vaccine], and it will be challenged in court. Whether the courts will allow the mandate to stand or not is unclear at this point,” Reiss said.

Many hospitals, which are the first workplaces to receive the Covid-19 vaccine, are not requiring employees to get the vaccine since it has been approved under emergency use. The Society for Healthcare Epidemiology of America (SHEA), which has broadly endorsed requiring approved vaccinations for healthcare workers, teachers and students, has said in its Covid-19 vaccination policy recommendation that a Covid vaccine should not be mandatory for healthcare workers while the vaccine is under emergency approval, but that healthcare facilities can consider requirements once the vaccine receives full approval.

Dr Tom Talbot, the chief hospital epidemiologist at Vanderbilt University medical center and a member of SHEA, said he worries that vaccine mandates could backfire.

“You end up risking sowing distrust in the vaccine now at a time when really it’s about building trust and conversation,” Talbot said. “If we do it too soon, it really can further the anti-vaccine schism and there can be longer-term harm.”

Talbot said that his own hospital has taken on the strategy of sharing information about the vaccine and having their experts talk with employees one-on-one about the vaccine to get people comfortable with the idea of getting vaccinated.

“The feedback we’ve gotten is really appreciative and that we’ve allayed some anxiety among our populations about things that they’ve been hearing or seeing or are worried about,” he said.

Talbot said once healthcare workers are comfortable with the idea of vaccinations, they can then advocate the vaccine for their patients.

“Healthcare workers are the gatekeepers for the patients. If we can get the healthcare workers comfortable and they get vaccinated, they will be their advocates for their patients and have those conversations.”