The COVID-19 pandemic has spawned unprecedented public health challenges and spurred a global race to develop and distribute one or more viable vaccines. While the arrival of a vaccine may be months away, a critical question already looms: can employers, particularly those in health care settings, require employees to take the vaccine when it does become available? If employers do mandate the vaccine, would insurance carriers provide coverage if sued by the employee or the employee experiences negative side-effects from the vaccine?
In the health care industry, mandatory vaccination programs for employees are common, but not uniform across the industry. Requiring vaccination for workers in clinical settings is a long-accepted, widely used standard practice when health care workers can be vectors of infection, particularly airborne pathogens. For example, some states already mandate influenza vaccination for workers in long-term care facilities, and several have requirements for acute care facilities. Many states, however, do not have legislation requiring vaccination of health care workers. Therefore, the responsibility falls upon hospitals and other health care facilities to develop and enforce their own policies.
Recent polls suggest that the U.S. is far from embracing the highly anticipated COVID-19 vaccine. Vaccine hesitancy has historically been a hurdle, with only 45% of adults having received the flu vaccine during the 2018-19 flu season, according to the CDC.[i] Skepticism surrounding an unproven and, as yet, undeveloped vaccine poses another. A May survey found that less than two-thirds of U.S. adults were “very” or “somewhat” interested in getting a COVID-19 vaccine.[ii]
It would be easy to assume that in a health care setting there is a high level of understanding and acceptance of vaccines. The reality is that health care employees live in the same communities and are exposed to the same social media, arguments and influences that drive vaccine cynicism in the rest of the population. But the stakes are far higher among health care workers. Public health officials frame the issue of vaccine mandates for health care workers as one of resident safety. Studies have shown higher death rates in health care settings with a smaller percentage of vaccinated employees
This tension between employees who distrust vaccines and employers who want to encourage or require vaccination has led many to explore the legal ramifications of compulsory vaccine policies.[iii] While the benefits of a fully immune workforce seem clear, what is less obvious are the legitimate objections that employees may raise to mandatory COVID-19 vaccinations, the legal basis for those objections, and the potential legal consequences for health care employers that fail to require their employees to be vaccinated.
[i] Centers for Disease Control and Prevention, General Population Vaccination Coverage, September 26, 2019, Available at https://cdc.gov/flu/fluvaxview/coverage-1819estimates.htm
[ii] Joseph Ax & Julie Steenhuysen, Exclusive: A Quarter Of Americans Are Hesitant About A Coronavirus Vaccine, May 21, 2020, Available at https://www.reuters.com/article/us-health-coronavirus-vaccine-poll-exclu/exclusive-a-quarter-of-americans-are-hesitant-about-a-coronavirus-vaccine-reuters-ipsos-poll-idUSKBN22X19G
[iii] Rene F. Najera & Dorit R. Reiss, First Do No Harm: Protecting Patients Through Immunizing Health Care Workers, 26 HEALTH MATRIX 363, 368 (2016) (exploring “the legal issues surrounding the influenza vaccine requirement for health care workers”).
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