By Meera Jagannathan
The firing of a New York waitress over her resistance to taking a COVID-19 vaccine became an early example of employers’ broad authority to enforce workplace vaccine mandates.
Bonnie Jacobson, 34, said the Red Hook Tavern in Brooklyn terminated her employment after she requested time to look into the vaccine’s potential impact on fertility, the New York Times reported . The restaurant had mandated vaccination for employees last weekend.
“I totally support the vaccine,” Jacobson told the paper. “If it wasn’t for this one thing, I would probably get it.”
In an emailed statement, Red Hook Tavern owner Billy Durney told MarketWatch that “[o]nce New York state allowed restaurant workers to receive the COVID-19 vaccine, we thought this was the perfect opportunity to put a plan in place to keep our team and guests safe.” He did not specifically address Jacobson’s situation.
“No one has faced these challenges before and we made a decision that we thought would best protect everyone,” Durney added. “And, we now realize that we need to update our policy so it’s clear to our team how the process works and what we can do to support them. We made these changes immediately.”
Experts believe the currently authorized mRNA COVID-19 vaccines are unlikely to pose specific risks to pregnant people, though “the actual risks of mRNA vaccines to the pregnant person and her fetus are unknown because these vaccines have not been studied in pregnant women,” the U.S. Centers for Disease Control and Prevention say .
Vaccine manufacturers are monitoring clinical trial participants who became pregnant, and “researchers have studies planned in people who are pregnant,” the agency adds.
U.S. employers can generally mandate that their workers get vaccinated against COVID-19, the U.S. Equal Employment Opportunity Commission suggested in guidance released in December , confirming what many employment-law experts had long speculated .
“This guidance makes it very clear that employers have the law on their side,” Sahar Aziz, a Rutgers Law School professor with expertise in employment discrimination, previously told MarketWatch. “Your employer can mandate that you take the COVID-19 vaccine, so long as you do not have a [sincerely held] religious belief or a disability that would prohibit you from taking the vaccine.”
The EEOC’s vaccine guidance
If the basis for an employee’s refusal to take the vaccine is a religious belief or disability, employers have a legal obligation to provide a reasonable accommodation such that the employee could keep their job but perform it remotely, go on unpaid leave or change their job duties, Aziz said. But an employer can refuse a requested accommodation if it poses an undue hardship, such as significant expense or difficulty.
Meanwhile, if an employee can’t get the vaccine due to a disability or religious belief and no reasonable accommodation is possible, then the employer could legally exclude that person from the workplace, the EEOC added.
But the ability to bar an employee from the physical workplace doesn’t mean the employer can automatically fire the person: “Employers will need to determine if any other rights apply under the EEO laws or other federal, state, and local authorities,” the agency said.
Employers are limited in their ability to require medical exams, such as vision tests, blood and urine analyses and diagnostic procedures. But an employer-administered COVID-19 vaccination is not a medical examination, the EEOC said, because the employer isn’t asking for information about the worker’s current health status or impairments. (In contrast, an antibody test does constitute a medical exam under the Americans with Disabilities Act, according to the EEOC.)
The agency added that asking an employee to provide proof that they were vaccinated against COVID-19 doesn’t count as a disability-related inquiry.
“There are many reasons that may explain why an employee has not been vaccinated, which may or may not be disability-related,” the EEOC said. “Simply requesting proof of receipt of a COVID-19 vaccination is not likely to elicit information about a disability and, therefore, is not a disability-related inquiry.”
But follow-up questions, like why someone didn’t get vaccinated, “may elicit information about a disability and would be subject to the pertinent ADA standard that they be ‘job-related and consistent with business necessity,’” the agency said.
Few employers currently mandate COVID-19 vaccination
The Food and Drug Administration granted emergency-use authorization in December to vaccine candidates from Pfizer /zigman2/quotes/202877789/composite PFE -1.05% and its German partner, BioNTech /zigman2/quotes/214419716/composite BNTX -4.47% , and Moderna /zigman2/quotes/205619834/composite MRNA -6.72% , providing a bright spot in a pandemic that has killed more than 490,000 people in the U.S. Experts expect the average American who doesn’t fall into a high-priority group will be able to get vaccinated by the summer .
Just 0.5% of companies currently mandate coronavirus vaccination for all employees, and only 6% plan to mandate it for all workers once vaccines are readily available and/or fully approved by the FDA, according to a recent survey of 1,802 C-suite executives, HR professionals and in-house lawyers from a range of industries conducted by the employment-law firm Littler.
Another 3% said they plan to mandate vaccination only for certain workers, such as those in customer-facing roles.
But for the most part, companies either came out against vaccine mandates or said they were undecided: 48% said they would not require employees to get vaccinated, and 43% said they were unsure and still weighing the possibility.
Legal experts who spoke with MarketWatch before the EEOC released its guidance predicted that employers would be more likely to promote and facilitate COVID-19 vaccinations than require them, in hopes of avoiding conflict, potential litigation and negative publicity.
Some large companies, including Facebook /zigman2/quotes/205064656/composite FB +0.45% and Discover Financial Services /zigman2/quotes/208747867/composite DFS -4.22% , told the Wall Street Journal in December they planned to urge workers to get inoculated but refrain from imposing an outright mandate. Other employers said they would provide workers with financial incentive to get their shots, and/or restrict access to certain events and activities for those who don’t get vaccinated.
Employers can use ‘the stick, not just the carrot’
Should an employer decide to venture beyond using soft power to persuade workers and promote vaccinations, “this guidance allows them to use the stick, not just the carrot,” Aziz said. If an employer’s attempt at a voluntary vaccination program doesn’t achieve their desired level of compliance, “they can mandate it without having to be exposed to liability,” except in the case of employees with disabilities or sincerely held religious beliefs.
Such mandates are not without precedent in medical settings: Several states require workers in health-care and long-term-care facilities to get vaccinated against influenza and other vaccine-preventable diseases. Many health-care facilities also require that their workers get vaccinated.
The EEOC’s pandemic-preparedness guidance issued in response to the 2009 H1N1 pandemic emphasized the fact that an employee might be entitled to exemptions based on an ADA disability or a “sincerely held religious belief, practice or observance,” and said ADA-covered employers should generally consider just encouraging workers to get vaccinated rather than requiring it.
The federal government doesn’t appear willing to broach a mandate either. Prior to his inauguration, President Biden said in December he didn’t think mandatory vaccinations would be necessary, the BBC reported .
“I will do everything in my power as president to encourage people to do the right thing and when they do it, demonstrate that it matters,” Biden said.
And longtime National Institute of Allergy and Infectious Diseases director Anthony Fauci told Healthline in August that he didn’t think the U.S. government would ever mandate a vaccine for the general public, though medical facilities might require workers to get vaccinated before interacting with patients.
“I’d be pretty surprised if you mandated it for any element of the general public,” he said, “You cannot force someone to take a vaccine.”