COVID-19 vaccinations are here, and most people are excited — but not everyone. What if you don’t want to get one, but your employer says, “No shot, no job?” And, aside from that, is there a way that the business world and government can encourage taking the vaccination voluntarily as opposed to mandating it?
I put the first questions to Southern California-based employment attorneys Dan Klingenberger and Jay Rosenlieb, and the second question to Dr. Luis Vega, psychology professor at California State University, Bakersfield.
Question No. 1: Can an Employer Make Workers Get a Vaccine?
Klingenberger: This is a huge question, and the answer may depend on the type of employment. An employer in the health care industry may, for example, have greater rights and needs than an employer in the construction industry. If an employer requires employees to be vaccinated, at present we see at least two ways this could be challenged:
- By raising a religious accommodation issue. “For religious reasons I object to receiving the vaccine.” In this case, the employer would need to explore whether the employee has a “sincerely held religious belief” that would require an accommodation. That can be a delicate process, but let’s assume that the employee says enough for the employer to credit the request for a religious accommodation. And let’s assume everyone else is vaccinated. What might an accommodation in this context look like? The employer could evaluate things like: Can the employee work remotely (thereby not exposing others if the employee contracts the virus)? Is the employee’s position one where he/she does not come in contact with other employees? If such accommodations are possible, how long will the accommodations work for the employer and employee?
- An employee may have medical concerns or a disability that causes them to want to avoid receiving the vaccine. The Americans with Disabilities Act (ADA) requires employers to follow certain steps to consider a reasonable accommodation upon request by a person with a disability. Examples of a disability that could qualify include pregnancy or an underlying health condition that precludes receipt of a vaccination, something that would be up to a health care provider to determine.
However, an employer may have the right to require the vaccination if it could be shown that failing to get it would create an undue hardship on the employer or pose a direct threat to anyone working around that person. Additionally, this could be the basis to deny a request for accommodation.
Rosenlieb: History has shown that even prior to the swine flu pandemic in 2009, the EEOC has allowed mandatory vaccination programs. For example, mandatory flu vaccines in the health care sector are accepted, as well as obligatory hepatitis vaccination in the wastewater treatment industry.
It is clear to me that employers can require the vaccination; the bigger question is, should they? To answer that question, they will need to take a look at their individual circumstances to determine the level of acceptable risk with respect to requiring employees receiving the vaccine.
For example, an employer who has not had significant cases of COVID-19 in their workplace and is not in health care, the food industry, meatpacking or wastewater may decide that it is not worth accepting a risk of an EEOC or ADA claim by requiring receipt of the vaccine. Some of those risks are that if the employee receives the vaccine and has a negative reaction, this could become a workers’ compensation claim.
OSHA requires employers to create a safe workplace. In California, Cal/OSHA has created several COVID-19 related requirements, including having a site-specific written COVID-19 prevention program. The new emergency regs do not mandate vaccinations. However, if an employee does not take sufficient steps to address the virus, the employer could be cited by OSHA or Cal/OSHA.
Mandating the vaccine is a hot potato. I do not believe that employers should be required to have mandatory vaccination programs. See how much trouble we are having with requiring face masks? It would be the same thing, only 10 times larger. A mandatory vaccine program opens the employer to bad media relations, negative social media comments and disruptions in the workplace.
What Should Employers Do Now?
Klingenberger: Employers need to self-educate to be sure they are complying with government requirements and regulations related to policies that address COVID-19 preparedness. This will vary from state to state.
All employers should continue their current prevention programs — masks, social distancing, checking temperatures — and in addition to that, it makes sense for company owners and managers to consider sponsoring an on-site voluntary clinic and be the first in line to roll up their sleeves and get the vaccine.
This will probably be the very best form of encouragement and much better than ordering their employees to get the shot.
Question No. 2: How Can We Encourage Vaccination? A Psychologist Weighs In
Some months ago, I wrote “The Psychology of Being Scammed,” based on my interview with Dr. Vega, a psychology professor whose professional interests include methods of persuasion. I asked Dr. Vega why anyone would refuse a vaccine, knowing that almost 2 million people worldwide have died from COVID-19. His answer took us on a brief detour to the world of literature:
“Shakespeare describes how two young lovers — told they were not free to love each other — chose to exercise the ultimate free choice and took their own lives.
“The sense of losing one’s freedom evokes a strong need to regain it that psychologists call the Romeo-Juliet Effect. Mandates for COVID-19 vaccination could encourage some people to oppose vaccination, because it gives them the perception of losing their freedom of choice at the cost of a fatalistic, Shakespearian outcome, where even dying preserves a sense of one's freedom, irrational as it might sound.
“Ideally, government and the business world will encourage everyone to realize they have a choice of action, and the best is accepting the COVID-19 vaccine, which for many will be a matter of life or death. That means placing the focus on what we stand to lose by not taking the vaccine.”
How Can We Deal with People’s Fear of the Vaccine?
“Dennis, let me draw a parallel to a common reaction by people — paralyzed by fear — and unable to save themselves in aircraft accidents, cruise ship disasters and fires.
“To prevent inaction and paralysis, we must tell people what to do, and provide a road map to overcoming fear. The thought of dying from COVID-19 is frightening to most of us, yet, even with a disease-preventing vaccine, some inaction — rejection by people who march to the beat of a different drummer — must be expected.
“We have a good chance of reversing it by providing the solution, which is vaccination. The more we explain how vaccinations work, the better. And when people who we look up to take the vaccine, we will see the ‘monkey-see-monkey-do’ effect.”
I asked him to explain the mechanics of how the monkey-see-monkey-do effect works.
“It is important to see other people who are like ourselves getting the vaccine. When we find business and government in the same group — the same boat — all getting the vaccine, this avoids a feeling of ‘us-them separation,’” he notes.
Of course, there are some people — for medical or other personal reasons — who will not want to take the vaccine. Those who decline to take it for religious or other reasons may find these difficult positions to maintain, and that is something the legal system will address. But what about someone who just says, “I do not want to take the shot and don’t care what anyone thinks. This is my right!”
“Of course, some people will opt not to get the vaccine,” Vega observes, “and this reveals the ‘us-them separation through differences: ‘Us’ taking the vaccine as the normal thing, ‘them’ not taking it, as reckless, outside the norms.”
Professor Vega concluded our discussion in a way that would have made old Bill Shakespeare proud:
“As humans we strive for a sense of belonging; feeling different marginalizes us, and we do not like that, not at all. The monkey-see-monkey-do effect reduces differences, and those who do not follow will feel the pressure to conform, or be marginalized.”
After attending Loyola University School of Law, H. Dennis Beaver joined California's Kern County District Attorney's Office, where he established a Consumer Fraud section. He is in the general practice of law and writes a syndicated newspaper column, "You and the Law." Through his column he offers readers in need of down-to-earth advice his help free of charge. "I know it sounds corny, but I just love to be able to use my education and experience to help, simply to help. When a reader contacts me, it is a gift."
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