With COVID-19 Vaccine On the Way, Can Employers Make Vaccination Mandatory?

Development of effective COVID-19 vaccines offers the hope that the pandemic will abate and the economy recover–if a large number of people get the shots. A Gallup survey completed between July 20 and August 2 found that 65 percent said they would get the shots and 35 percent said they would not.

According to the Kaiser Health Foundation, about 49 percent of all Americans get their health insurance from their employer. That raises an important question regarding COVID-19: Can private employers require workers to be vaccinated?

In a letter to an Ohio congresswoman inquiring on behalf of a constituent, the U.S. Department of Labor's Occupational Safety and Health Administration said, "Although OSHA does not specifically require employees to take the vaccines, an employer may do so."

Stephanie Taub, an attorney with First Liberty, a law firm defending religious freedom based in Plano, Texas, said requiring workers to get the COVID-19 vaccine shouldn't be a problem as long as the employer complies with applicable federal, state and local laws.

"Exemptions have to be granted under Title VII of the 1964 Civil Rights Act," she told Newsweek.

"I think it's possible some employers will require vaccinations," she said. "They should consult with an attorney and respect an employee's right to object on religious grounds."

Under Title VII, a "sincerely held religious belief" is needed to claim an exemption. A personal belief such as following a vegan diet or refusing the vaccine because it may be dangerous, is insufficient under the law. However, the employer can deny an exemption due to a sincerely held religious belief if it poses an "undue hardship" for others. Many employers therefore adopt an "if/then" approach to exemptions: If workers get the shot, then they are permitted to hold certain jobs.

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A stock image shows a vaccination being prepared against a background of an illustration of the coronavirus. Hopes are that a vaccine will lead to economic recovery. Getty

Under the Americans With Disabilities Act, vaccinations and screenings are considered medical procedures, and requiring the coronavirus vaccine therefore must be job related. As a result, healthcare providers, nursing home employees, food preparation workers and others that work in high-risk environments or with high-risk populations can be required to receive certain vaccinations.

Similar rules are now in force for other types of shots and widely accepted.

For example, many school districts require parents to present proof of vaccination against measles, mumps and rubella before enrolling their child in kindergarten. The University of California at Berkeley requires students to show proof of vaccination against tuberculosis before attending class.

In a case with implications for potential mandatory coronavirus vaccination, the U.S. Supreme Court ruled 5-4 in a decision last week to prevent New York Governor Andrew Cuomo from enforcing 10- and 25-person limits on attendance at religious services.

The Catholic Diocese of Brooklyn and Agudath Israel filed the case. The Court said the governor's restrictions violated religious freedom and were not neutral because they "single out houses of worship for especially harsh treatment." The decision said there is no evidence that the organizations that brought the lawsuit have contributed to the spread of COVID-19, and noted that essential businesses can admit as many people as they wish.

The goal of a vaccine is to create general immunity to a disease. Health experts cited by the University of Missouri estimate that 60 percent to 70 percent of the U.S. population, or about 200 million people, must be immune to COVID-19 to develop herd immunity.

But that's just an estimate and further research is needed. In any case, health officials usually don't talk about herd immunity as a tool in the absence of vaccines.

"The concept of achieving herd immunity through community spread of a pathogen rests on the unproven assumption that people who survive an infection will become immune," Nature magazine reported.

"Herd immunity," also called "population immunity," is achieved by protecting people from a virus – not by exposing them to it, the World Health Organization (WHO) said in a report.

In response to a vaccine, the immune system creates proteins called antibodies that fight disease. Vaccines protect individuals from getting a disease and passing it on, breaking the chain of transmission. The percentage of a population needed to have antibodies to achieve herd immunity varies depending on the disease. It's about 95 percent for measles and about 80 percent for polio, WHO said.

The level needed to achieve herd immunity for the coronavirus is unknown.

"We are still learning about immunity to Covid-19. Most people who are infected with Covid-19 develop an immune response within the first few weeks, but we don't know how strong or lasting that immune response is, or how it differs for different people. There have also been reports of people infected with Covid-19 for a second time," WHO said in a report.

"Until we better understand Covid-19 immunity, it will not be possible to know how much of a population is immune and how long that immunity lasts for, let alone make future predictions," the report said.

Until that level is known, officials recommend wearing masks in public, frequent hand washing and social distancing as basic steps to curb spread of the coronavirus.

There don't appear to be any lawsuits yet that challenge the authority of employers to require a COVID-19 vaccination as a condition of employment. But when the vaccine is distributed, who should be among the first to get the shots?

Researchers at Johns Hopkins University discussed "this difficult and potentially contentious topic" with the Advisory Committee on Immunization Practices, the National Academy of Medicine, WHO and the U.S. health officials.

The U.S. Centers for Disease Control and Prevention recommends four groups for early vaccination: healthcare workers, those in essential jobs, people with underlying medical conditions, and those aged 65 and older.

The National Academies of Sciences, Engineering, and Medicine said frontline healthcare workers comprise about 5 percent of the US population, while those with underlying health conditions such as cancer, serious heart conditions and sickle cell disease make up about 10 percent of the population.

School staff, including teachers, administrations, maintenance workers, bus drivers and support staff, make up 30 percent to 35 percent of the population. Workers in industries vital to the economy, including banks, transportation and factories, make up 40 percent to 45 percent of the population.

The National Academies noted that young adults, or those aged 18 to 30, typically have broader social networks than their elders and therefore pose an increased risk of spreading infection. Gallup found that 76 percent of people aged 18 to 29 said they would get the shot.

Willingness to get vaccinated splits along party lines. Eighty-one percent of Democrats said they would get a free, FDA-approved vaccine, compared with 59 percent of Independents and 47 percent of Republicans, Gallup said.

Companies that have announced successful development of a coronavirus vaccine include Pfizer and partner BioNTech, Moderna and AstraZeneca. Other publicly traded companies racing to develop COVID-19 vaccines include Arcturus, CureVac, GlaxoSmithKline, Johnson & Johnson, Novavax, Sanofi and Therapeutics Holdings.