MAINE, USA — This week, Maine surpassed 1 million COVID-19 vaccinations—a growing milestone, almost 15 months since the pandemic began. As vaccines become more available, some people are asking a new question: Can employers require employees to receive the COVID-19 vaccine?
Like so many issues during an unprecedented year, the answer is complicated and still somewhat unclear. Legal experts in Maine are pointing to a hard "maybe."
Employers typically do have the freedom to require vaccines, with medical or religious accommodations—but this conversation has entered new territory since the COVID-19 vaccine is still approved under Emergency Use Authorization by the U.S. FDA.
"Employers most probably could mandate the COVID-19 vaccine," Peter Lowe, partner with Brann & Isaacson, told NEWS CENTER Maine. In December 2020, he co-published an article with colleague Hannah Wurgaft, titled "How to craft a COVID-19 employee vaccine policy." The main point of that piece—"an employer’s decision to mandate vaccines should be driven by the nature of their operations and the weighing of some competing risks," noting medical and religious exemptions should still be allowed as reasonable accommodations.
Since that article was published nearly five months ago, Lowe says the landscape regarding vaccine availability has changed drastically, but legal issues have remained the same.
"Employers are proceeding, I think, judiciously and cautiously by encouraging the vaccine, incentivizing the vaccine—but not, to this point, mandating it," Lowe said.
Part of that hesitation is due to the fact that the vaccine is still listed under Emergency Use Authorization, which Vice Dean of the University of Maine School of Law Dmitry Bam says creates some concerns.
"There's some language in the federal statute that defines what emergency use is," Bam explained. "It suggests, at least, that it's a voluntary participation."
Bam says that come the final authorization from the U.S. FDA, a vaccine mandate (with some accommodations) at workplaces would be more likely. He says in the United States, you are an employee at will—an employer can fire you for any reason, good or bad, as long as it's not discriminatory. Therefore, unless there's an expressed prohibition on the vaccine, a mandate could become a reality. If an employee weren't able to get vaccinated for some reason, they would have to meet with their employer to find out if an accommodation is possible.
"The employer has the right to protect its own employees," Bam said.
Tara Walker, an attorney for Bernstein Shur, says the U.S. Equal Employment Opportunity Commission and Occupational and Safety Health Administration have allowed employers to mandate vaccines "in other contexts".
Walker says Maine's laws could pose some issues in relation to the COVID-19 vaccine, though. In other states, employers are required to use the workers' compensation system unless injuries are intentional or of gross misconduct. Walker says that exception does not exist in Maine, so all workplace-related injuries are treated under the workers' compensation system. In that case, if there is liability for the vaccine itself, it could be considered a workplace injury, if it were mandated.
Walker says in Maine, there is also generally no waiver -- so an employer could not ask an employee to sign a waiver, if the vaccine were mandated.
The public versus private sector may face some differences in the vaccine conversation, since the public sector is more likely to be unionized. Ann Freeman, a shareholder with Bernstein Shur, says she has some public sector clients who are worried a COVID-19 vaccine mandate may drive away potential hires -- a grim notion when industries like EMS, fire, and police are already hurting for workers. She says some frontline workers are considering asking employees to sign a declination form, if they choose not to get vaccinated.
"This is just a constantly evolving body of law and science and public policy," Freeman expressed.
Something these experts agree on -- it's okay to ask an employee whether they've been vaccinated, to a certain extent.
"Say in advance, 'I only want to know whether you're vaccinated or not. I only want to see the card. I don't want to know any other information," Freeman advised employers.
"If (an employee says), 'No', the employer should pause at that point -- and it's not a good idea for the employer to say, 'Well, why not?'" Lowe also noted.
There is some understanding that reasonable accommodations for those who don't get vaccinated could end up changing what the workplace looks like, in some cases.
"In the past, the position of the employer was, 'You have to physically be onsite to do the job' -- whereas now, that may not be true," Amy Sneirson, executive director of the Maine Human Rights Commission, said, noting new ways of doing business discovered during the pandemic will likely have a "huge impact".
Questions still looming -- how do employers treat vaccinated versus unvaccinated employees? At what point do incentives to get the vaccine (either money or paid time off) become unfair? Could allegations of harassment stem from this new era?
For employers looking for resources to navigate the pandemic, the MHRC has a section on its website dedicated to COVID-19 questions. Click here to read more. Sneirson says an educational webinar on COVID-19-related topics will be posted online within the next week or two.