Are Vaccine Mandates Legal, Ethical, Advisable? – Part 2

Vaccine mandates have a long, somewhat controversial, history, as I outlined in yesterday’s article.

They raise ethical questions about how to balance individual freedom and religious / philosophical objections with the public health concerns.

The first vaccine mandate lawsuit in the U.S. related to COVID-19 was filed by a New Mexican correction officers after county officials insisted upon a vaccine requirement for first responders and correctional officers on January 28, 2021.

While a federal judge rejected the officers’ request for a temporary restraining order, this issue will not go away.

For example, House Bill 268 in the Ohio legislature would prohibit employers from requiring vaccinations. Similar bills are expected throughout the nation this spring.

This illustrates the growing concerns over employer-sponsored vaccination requirements.

In January, Fisher Phillips conducted a flash survey of over 700 employers, which revealed that only 9% of U.S. employers are planning on requiring vaccines at this time, with 27% still considering it.

We are more likely to see COVID-19 vaccine mandates in the healthcare, construction and food production industries. It is important to note these percentages are expected to increase as the country opens up.

This forces the simple question, “Are employers allowed to do this?”

The simple answer is, “yes.” Just like employees have a right to choose where they want to work, employers have a right to set reasonable safety standards.

With regard to vaccines mandates, the CDC has found that when employers initiate a vaccine requirement, there are much lower levels of disease transmission among co-workers, which means few sick days used, higher productivity levels and lower health care costs.

On December 16, 2020, the Equal Employment Opportunity Commission (EEOC) affirmed that employers could require employees to provide documentation that they have received an approved COVID-19 vaccination before returning to work in person.

In addition to the EEOC, the Occupational Safety and Health Act of 1970 (OSHA) requires that employers provide workers with conditions that are free of known dangers.

OSHA does not require any vaccines specifically, but it does encourage at-risk industries like healthcare to conduct detailed risk assessments.

The flu has been recognized as a potential danger, and many see COVID-19 as a similar workplace danger. This could serve as a basis for employers to require proof of vaccination from their employees.

These mandates give employers a lot of benefits, such as reducing workplace infections and promoting productivity.

In 2013, the Pharmacy Times reported on a study of private sector healthcare facilities which required an influenza vaccine versus Veterans Affairs facilities (VA) without a mandate.

The average vaccination rate at the private facilities was 88.3% and the VA was 58.5%, with significantly fewer sick days used by private facility employees compared to those at the VA.

Other studies have reached the same conclusion: vaccine programs reduce sick days and healthcare costs.

On the other hand, employers might not implement a vaccine mandate to avoid lawsuits and negative press.

The 2007 Virginia Mason Hospital v. Washington State Nursing Association case is one example that I noted yesterday.

More recently, in Chenzira v. Cincinnati Children’s Hospital Medical Center (2012), a federal court rejected the petitioner’s request to recognize her vegan practices as religious, which was her basis for challenging a flu vaccination mandate related to animal byproduct usage in vaccines.

Other reasons employers might not implement a mandate include employee satisfaction / retention and human resource challenges related to enforcement.

Employees have been known to quite over such programs. ABC News reported in March that 21 employees from the Rock Haven Nursing Home in Wisconsin quit after administration required all staff to get a COVID-19 vaccine.

Such resignations further strain an already over-burdened U.S. health care system. With an estimated 15-30% of health care workers currently refusing the vaccine due to a variety of concerns, employers would not want to risk losing that many employees due to mandates.

Finally, a vaccine requirement creates human resource headaches.

While the EEOC does not require a vaccination program, if an employer has one then there needs to be exemptions for medical, religious, moral or philosophical reasons.

Medical exemptions can be easier to enforce, as they only require documentation from the employee’s primary health care provider.

Religious exemptions are more difficult to verify because many faith groups have come out with statements affirming that such objections are over-shadowed by the lifesaving benefits of vaccines.

With that said, legitimate religious objections exist and need to be respected within reason.

Moral objections do arise and are typically center around the use of immortal fetal cell lines from the 1960’s.

Philosophical objections are insanely difficult to process, because many ethicists and experts have affirmed that while legitimate objections exist, the benefit of vaccines overshadows moral infractions.

While the idea of an employer-mandated vaccine program is appealing, human resource managers and CEOs need to give serious consideration to the benefit-burden dichotomy that is generated by these programs.

Prior to beginning a vaccine program, employers need to consider what is and is not a legitimate exemption and be consistent in how the rules are applied.

Workers cannot be treated as numbers or cogs in a machine.

Any program must take into account employee satisfaction / retention, workplace safety and the fairness and equity of such requirements, along with the process for assessing exemption claims.

Editor’s note: This is the second of a two-part series. Part one is available here.