The Latest on Pandemic Plot Twist

For the past year, EHS Today has been reporting how companies can protect workers from COVID-19. That’s meant securing personal protective equipment, social distancing and increased cleaning. For the past few months, we’ve focused on vaccination strategies, attitudes and requirements.

The latest plot twist in the ongoing vaccination debate? State legislative mandates.

NBC News reports some state lawmakers are now interested in legislation against vaccination requirements.

"As vaccinations roll out across the country, lawmakers and public health experts are looking at whether new legislation can or should mandate them," NBC's Kaitlin Sullivan reports.

"Since the pandemic began, dozens of bills addressing vaccination laws have been introduced across the country, many of which would make it more difficult to administer or enforce vaccinations for adults. Legislators in at least 27 states have introduced bills that would block employers from requiring vaccinations. Many of the bills have been rejected. Some states, like Florida, have also sought to prevent businesses, such as airlines, from denying services to people who have not been vaccinated."

To be clear, states do require healthcare workers and school-aged children to receive some vaccinations, barring religious or philosophical objections. However, there are currently no government requirements for residents to be vaccinated.

These aforementioned bills would prevent states from mandating vaccination. Should any of these state legislative bills pass, it would create a headache for employers.

The Occupational Safety and Health Administration (OSHA) permits employers to establish legitimate health and safety policies that are job related and consistent with business necessity. In a 2009 guidance about pandemic preparedness, the Equal Employment Opportunity Commission (EEOC) explicitly said employers could require employees to get the flu vaccine so long as employers provided reasonable accommodations.

On Jan. 16, the EEOC issued revised vaccine standards. Under the Americans with Disabilities Act, the EEOC said an employer can require that an employee get vaccinated for COVID-19 only if they can show there is a direct threat to others if the employee remains unvaccinated.

To make this showing, the employer must evaluate the risk to others by describing:

the duration of the risk,
the nature and severity of the potential harm,
the likelihood that the potential harm will occur, and
the imminence of the potential harm.

Even if that threshold is met, it’s a fine legal line to walk.

Doris Reiss, a professor at the University of California Hastings College of the Law in San Francisco, told NBC News that she expects any mandates to face legal challenges. One of those challenges will likely be whether a vaccination can be required before it is officially approved by the Food and Drug Administration. The Pfizer and Moderna (and soon, the Johnson and Johnson) COVID-19 vaccines have been granted emergency use authorization, not full FDA approval.

The good news is that there is wide support for the vaccines. For example, we reported on a survey from solutions provider Sykes that found of 2,000 U.S. adults polled in November, 54% agreed that employers should require non-remote employees to take the vaccine. Of those polled, 63% planned to get a vaccine as soon as they are able.

These attitudes help explain why so many companies are offering employees small bonuses or a few hours of paid time off to get vaccinated. By offering incentives, companies also can sidestep the issue of enforcement, penalties or the inevitable legal challenges. For example, Kroger, Trader Joe’s and the city of Phoenix have announced plans to pay employees to get the COVID-19 vaccines.

Still, nearly half of companies have yet to communicate a policy on getting the vaccine, according to a survey released Feb. 8 by The Conference Board. Furthermore, one-third of companies that are encouraging workers to receive the vaccine are not mandating it as a condition of returning to the office.

It’s unclear how quickly state legislatures could move to enact to prevent any vaccination mandates, especially as vaccination capacity is expected to ramp up in the coming weeks. Who knows how attitudes and company policies may change as more and more of the workforce becomes eligible, and what kind of precedent is ultimately set during this evolving situation?

It is clear, however, that this will hardly be the last curveball the COVID-19 pandemic throws at us.