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Can employers order workers to get a COVID-19 vaccine?

Polsinelli Principal Lindsay Ryan and Yahoo Finance's Zack Guzman discuss whether employers are legally allowed to mandate workers to get a vaccine for the coronavirus.

Video Transcript

ZACK GUZMAN: We discuss the updates and progress being made on the vaccine front. There has been one question that we've been getting quite a bit here, and that has to do with whether or not your employer can tell you it's time to take one of those vaccines-- if they should get approved-- before you return back to the office. That's an interesting legal question, no doubt without precedent here. And here to discuss that with us, and the big question around this, is our next guest Lindsay Ryan, Polsinelli principal attorney, joins us here.

And Lindsay, I mean, when we talk about it, it is an interesting question. But what does precedent say? Because I know that there is a bit about that when we think about the flu vaccine as well. So how should people and employers be thinking about it?

LINDSAY RYAN: Right, well, thanks for having me back. I mean, throughout the pandemic, employers have been facing so many difficult decisions when it comes to furloughs and layoffs. And like you said, the next big question is going to be whether they can and whether they should require their employees to take a vaccine when it becomes available.

And just looking historically back at other vaccines, the general answer is that, yes, employers can require their employees to get vaccinated as a condition of employment. Now, you know, like with everything, just because it's legal doesn't mean that it's absolute or that it's recommended. We've already seen, you know, historically with certain employers that, for example, hospitals and health care providers will require vaccines like flu vaccines.

The difference, of course, for the COVID vaccine is that the vaccine, such as flu or chickenpox, have been around for a long time so we have long established health data to look back on. But the COVID vaccine not only is going to be coming to the table very quickly, but we just don't have that long term health data. So employers know less about it and employees are going to be understandably more reticent about getting vaccinated.

ZACK GUZMAN: And not only that, but I mean, there's also this-- this, I guess, privacy question that we're seeing play out here too when we think about cases in the office, whether or not you're allowed to talk about it if someone tests positive. I mean, there does seem to be that in the background playing out through all this, too.

LINDSAY RYAN: You're exactly right. And I think one thing that employers need to keep in mind-- I mean, first, if employers do choose to mandate the vaccine, they need to be prepared to make accommodations for employees, whether it be on disability grounds or religious grounds. But secondarily, even if it's lawful to mandate a vaccine, employers should expect that there's going to be pushback from employees who, even if they don't consider themselves anti-vaxxers, they're going to be understandably reticent about taking a vaccine that is so new.

And you know, they may feel like their privacy is being invaded by an employer mandating such a new vaccine that they know so little about. From the employer's perspective, of course, this could result in low employee morale. They could actually see employees refuse to come into work if they feel strongly enough about it that they just decide not to work, and that could put employers in a tough spot.

So I think it would be wise for employers not to rush to any decision to require the vaccine, wait and see what public health officials are saying about it, see what kind of guidance comes out, and take a softer approach, and maybe strongly encourage the vaccine rather than actually requiring it.

ZACK GUZMAN: You know, when we think about-- I mean, so much of these legal discussions always boil down to those one or two outliers that make most of these cases most interesting when we think about it. And inevitably, there might be someone who, even after being strongly encouraged to take the vaccine in the office-- I mean, if you have other employees in that office finding out that maybe they're not being uncomfortable with things, I mean, at what point does it become-- I mean, who here has the power, when you think about precedent between the employee and the employer-- if there is such a thing in these discussions-- as the upper hand?

LINDSAY RYAN: Well, there's different ways in which we could see liability arising out of these situations. I mean, certainly what I alluded to before, there may be employees that are actually refusing to get vaccinated based on disability grounds or based on religious grounds. And in that case, we're looking to the Americans with Disabilities Act when it comes to disability requests for accommodations. We're looking to Title VII when we're talking about religious exemptions.

But also, employers need to consider, for example, that unionized employees may have collective bargaining rights, and they need to be consulting their collective bargaining agreement in these situations. There also may be concerns about heightened workers' compensation claims if employers are actually mandating the vaccine, and then we see negative or adverse health effects among employees. So depending on the circumstances that arise, there are, you know, a variety of ways in which we can see liability rights for the employer under many different laws.

ZACK GUZMAN: It's a very intriguing question, one that I don't think a lot of people were asking at the beginning of 2020. But here we are, and we'll see how it plays out if a vaccine does make it beyond approval. But for right now, we'll leave it there. Lindsay Ryan, Polsinelli principal, appreciate you taking the time to chat.

LINDSAY RYAN: Thanks, Zack.