With the U.S. Food and Drug Administration's emergency approval of two coronavirus vaccines, businesses are assessing whether to require that workers get the vaccinations as a condition of employment.
"There is a lot of inclination to require it," said Randy Zook, president of the Arkansas State Chamber of Commerce, adding that the chamber will hold a webinar on the subject in January.
The state chamber has about 1,200 members, employing about 70% of the working population in Arkansas.
On Friday, the FDA approved Moderna's covid-19 vaccine for emergency use. On Dec. 11, the FDA approved the Pfizer-BioNTech vaccine for emergency use.
Public health experts say that for at least several months supplies of the vaccine will be limited to health care personnel, other front-line workers and people most vulnerable to the virus, such as residents of nursing homes.
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As supplies of the two vaccines become more widely available and more vaccines are approved for emergency use, more of the general population will be able to get vaccinated. It's hoped that will occur by summer or possibly as soon as late spring.
The projections are leading many businesses to consider their options. Requiring employees to get vaccinated could help slow spread of the virus, public health experts say.
Interest in the topic has been widespread in Arkansas.
"It is in the right of an employer to require a vaccination because our labor laws allow that," Zook said. "It is a reasonable request with a safe and efficacious vaccine that prevents the disease of a deadly virus."
"I have had multiple conversations with multiple clients," said Greg Northen, a labor and employment attorney with Cross, Gunter, Witherspoon & Galchus in Little Rock. "Businesses are trying to figure out what they can do, what they should do, and what they are required to do."
NOT UNPRECEDENTED
Requiring a vaccination for employment is not unprecedented.
Hospitals require staff members to get annual flu shots, for example. Faculty members at universities or in public schools must have certain vaccines for their jobs.
"As a threshold, we should start with the question -- can employers mandate vaccines of any type, including the covid vaccine, for their employees?" said Kevin Ryan, an associate dean and associate professor of public health law at the University of Arkansas for Medical Sciences' Fay W. Boozman College of Public Health.
"The general answer to that is, 'yes,'" Ryan said.
Last week, the U.S. Equal Employment Opportunity Commission, which enforces laws against workplace discrimination, issued updated guidance for employers on vaccine mandates.
"The EEOC made clear an employer may exclude an employee from the workplace," Northen said. "But that does not mean right off the bat an employer can terminate someone."
The guidance said employers can require workers to get vaccines and prohibit them from the workplace if they refuse.
The commission said such a mandate does not violate the Americans with Disabilities Act of 1990, which limits an employer's ability to require certain medical tests or medical information from an employee.
"If a vaccine is administered to an employee by an employer for protection against contracting covid-19, the employer is not seeking information about an individual's impairments or current health status," the commission said. "Therefore, it is not a medical examination."
Requiring proof of vaccination also does not fall under the purview of a disability inquiry, the commission said.
Unlike other vaccines, such as for polio, which, according to Ryan, was generally accepted when it was approved in the 1950s, covid-19 vaccines have been met with widespread skepticism from the American public, either because of political convictions or safety concerns related to the speed with which the vaccines were developed and approved.
Up to 70% of Americans surveyed by McKinsey & Co., including those in high-risk groups, "convey uncertainty toward covid-19 vaccination," according to the research consulting firm.
"That means that among 195 million Americans who would likely need to be vaccinated to reach herd immunity in the population, about 100 million to 150 million would need to be engaged further to decide and take action to get vaccinated," McKinsey said.
'DIRECT THREAT'
Simply refusing a covid-19 vaccine may not be enough justification for an employer to exclude, or even terminate, an employee, said Abtin Mehdizadegan, an employment attorney with Cross, Gunter, Witherspoon & Galchus in Little Rock.
"There is a direct threat caused by covid-19," said Mehdizadegan, who is also an adjunct professor at the University of Arkansas at Little Rock William H. Bowen School of Law. "So employers do have a legitimate business interest, and these vaccine policies are permissible except in the cases of religious accommodations or disability accommodations."
The Equal Employment Opportunity Commission guidance said an employee could be exempt from a mandate under the Americans with Disabilities Act if that employee has a medical condition that would preclude vaccination.
The agency also said an employee could be exempt from a vaccine requirement because of a "sincerely held religious belief, practice or observance."
The federal guidance advises employers to "accommodate" such exceptions, by placing a qualifying employee in another position, such as working remotely, which would not jeopardize the health and safety of co-workers, or requiring the employee to wear a mask or take other safety precautions.
"If an employee cannot get vaccinated for covid-19 because of a disability or a sincerely held religious belief, practice or observance, and there is no reasonable accommodation possible, then it would be lawful for the employer to exclude the employee from the workplace," the commission said. "This does not mean the employer may automatically terminate the worker."
But for employees who simply do not want to take the vaccine, there may not be many options, Mehdizadegan said.
"There is a lot of political furor, people who don't trust the vaccine," Mehdizadegan said. "Is there anything to accommodate those people? No."
"If the employment cannot continue because of an employee's choice not to be vaccinated for no protective reason, then the repercussion would be to find a different job," Northen said.
Legal experts say it is unclear whether a vaccine mandate would be put into law, and if it was, it would likely be at the state, rather than the federal level.
"The current legal considerations surrounding employee vaccination depend on interpretation of many existing laws and other sources of employee rights in the workplace," according to analysis published Saturday by The National Law Review.
"Such rights are not just established by laws, but also by collective bargaining relationships and, in some cases, the industry which the employer does business," the analysis said. "In addition, there are compelling business considerations unique to each employer that should influence whether to mandate, or simply encourage, employee covid-19 vaccination."
SAFE WORKPLACE
While there are no clear legal obligations to require employee vaccinations in the workforce, under federal laws there is a requirement for employers to provide a safe workplace.
Northen said a vaccine requirement could fall under the purview of that requirement.
"That is a serious obligation," he said. "It is not an option, it is required."
Zook said he expects requirements to differ by industry. For example, a manufacturer might issue a vaccination requirement because of the number of employees working in close proximity, he said.
Similarly, a retailer might require one because of the number of workers who interact with the public. In contrast, a company where workers are mostly outdoors might not issue such a mandate.
"It could be a very situational decision," Zook said. "Depending on the nature of the business, the workplace setting, the proximity of employees to one another, there are all kinds of issues."
Business leaders are concerned about liability, particularly if the vaccines prove to be unsafe down the road.
"That is really the ultimate question," Northen said. "The fear that businesses have. If they make the wrong decision, can they be sued for this?"
The state Chamber plans to lobby state legislators to pass laws that would protect businesses from being sued in such a situation, Zook said.
"We certainly are going to be pushing," Zook said. "We are in discussions from time to time with them, but nothing is formulated or proposed at this point."
In lieu of workplace mandates, Ryan predicts that many businesses will encourage voluntary vaccinations among employees and help facilitate that process.
Widespread acceptance will be an ongoing process involving the government, the private sector and efforts to educate the public about the safety and importance of receiving a covid vaccination, Ryan said.
"The bottom line, and there are other public health interventions that have faced similar challenges over the years, the answer has to be in education," Ryan said. "Here is why the vaccine is the appropriate intervention. This needs to be made clear to people through a myriad of different channels."
"We need to find the common ground between those who are ready to take the vaccine, and those who are not," he said. "Everyone wants to protect themselves, their families and their communities."