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Can Employers Require Workers To Get A COVID-19 Vaccine?

ARI SHAPIRO, HOST:

Now that a coronavirus vaccine has arrived, we can imagine the day we are back in a warren of office cubicles or assembly lines, elbow to elbow with co-workers. And if your beloved colleague a couple of feet away starts violently coughing, how confident can you be that they got vaccinated? To put it another way, can employers make vaccination mandatory? Well, the U.S. Equal Employment Opportunity Commission has issued guidance on that. And here to discuss it with us is Johnny Taylor Jr. He's president and CEO of the Society for Human Resource Management.

Thanks for joining us.

JOHNNY TAYLOR JR: So great to be here. Thank you.

SHAPIRO: To start with a rough outline of the EEOC guidance, it says employers can make sick workers stay home, can require a doctor's note before coming back, can mandate testing. And it says employers can require workers to get vaccinated with some limits. Tell us about what those limits are.

TAYLOR: So they're primarily around the workplace laws. So one of them is this piece of legislation called Title VII, which many of us know. The EEOC, the Equal Employment Opportunity Commission, enforces and educates people about Title VII. And it's your workplace rights, generally speaking. There's another piece of legislation called the Americans With Disabilities Act, however, that also allows for certain accommodations to be made for people who have disabilities. And so a vaccine could carry with it some risk of people who have disabilities to become sicker as a result.

And therefore, the question is whether or not a reasonable accommodation is available, the accommodation being not requiring that they take the vaccine is one such option. So primarily, there are two things at issue. Under the EEOC in Title VII, there are religious exemptions for people who have a religious objection - legitimately held, sincerely held religious belief - that would prevent them from taking a vaccine, and the people who have disabilities are primarily the two laws that are exceptions to an employer's ability to mandate a vaccination.

SHAPIRO: And does the kind of work make a difference at all? Like, would requirements differ if somebody is, say, a health care worker versus a grocery store employee versus an office worker?

TAYLOR: Well, right. That's - and that's really a critical point - right? - is employers have to provide a reasonable accommodation under the ADA. Now, if you are a health care worker, it is likely not deemed reasonable for an employer to - being a hospital, let's say - to allow you to work when you could put other there-already-sick people at risk. So the law says, even though should make an accommodation for you, it's deemed unreasonable and would create an undue hardship potentially on the employer. So this is going to be an interesting area under the law as we figure out what is deemed a reasonable accommodation.

SHAPIRO: One phrase in the EEOC guidance that seems particularly fraught is the exemption for, quote, "sincerely held religious belief." I mean, just to take one example, the QAnon conspiracy may not be an established religion, but it has certain similarities to religion. And many evangelical pastors have told us that they see these beliefs, which include anti-vaccine positions, spreading in their congregations. So who will ultimately decide what is a sincerely held religious belief versus a conspiracy theory or a personal preference?

TAYLOR: Well, so there's the saying that I learned in college. One man's religion is another person's mythology, right? And that's real. So that creates the challenge for human resources professionals in particular in work environments to determine whether or not the person sincerely holds this religious belief. Now, it's tough because one day one can not have that religious belief and the next day they can be - find whatever their God is or their spiritual supreme being is. And who's to say that someone doesn't feel differently about their life from Tuesday to Wednesday? And to your point, whether or not something is a created religion, well, who's it for me or you or particular for an employer to decide whether or not your religious belief is sincere or that it's a "legitimate" - and I'm using that term in quote - religion. That is where this will become very, very complicated.

SHAPIRO: There are also Americans who say they don't plan to receive the vaccine because of this country's racist history in government-led medical programs. Now, that's not an EEOC exemption, but if an employer runs up against that sort of attitude, what do you expect them to do, make accommodations for a worker or fire them or engage that person on the merits of getting vaccinated?

TAYLOR: Right. So I think the issue there is pretty clear, and it goes back to I think the default is employers are going to say OSHA says I have to protect this workplace. I understand the country's history, racist history, sexist history. I mean, you can go down the list. But at the end of the day, I can't bring you into the workplace if you pose a legitimate hazard to other employees. So you can't so focus on the individual that you put the larger group at risk.

SHAPIRO: So what are you hearing from employers?

TAYLOR: So it's fascinating. It's all the rage - right? - right now. And it runs the gamut. Two observations. One is for employers who have employees who are primarily working at home, I think they can dodge the bullet a little bit, right? The more complicated, and what we're hearing is, what about people who come into the office two days a week? Well, you know, it's not like COVID - if you only come in the office Tuesdays and Thursdays that COVID limits its exposure. You know, it doesn't. It might arguably reduce it, but you could become sick or transmit COVID on the one day a month that you come to the office.

So I think what we're hearing, especially now with the EEOC's recent guidance, is that more and more employers are seriously considering a mandate. And this is unheard of with the exception of certain sectors like health care. But this idea that there's going to be a wholesale mandatory vaccination requirement, it's taking on a little bit of a life of its own. And I think, while I'm not sure that I'm prepared to say that it will be 70 or 80% of employers, it's going to be significantly higher and in a much broader set of companies than we've seen and industries that we've seen in the past.

I do have one big prediction, and that is based upon what we're hearing from small and medium-sized companies, they are the bread and butter of America. That's what keeps our economy going. And what we're hearing from smaller company entrepreneurs is, sure, the big companies can take one or two people getting sick or 10 or 12 people getting sick. But if I'm a 25-person employer and three of my employees get sick and, God forbid, get the rest of them sick, I'm out of business. Or if I'm a small restaurant and one of my employees transmits this to a customer and the word gets out, I'm destroyed. And we know that I can no longer buy insurance to prevent - the insurance companies have essentially said, no, this is not, you know, business disruptions. And so small and medium-sized companies, I fully predict, are going to over-index in requiring a mandate. I just did an interview the other day with a small company owner, and she said it, point blank, the second it's available, any employee who does not take it will not work here, full stop.

SHAPIRO: Would you also be confident predicting that in 2021 we're going to see a lot of litigation around this question, perhaps including at the Supreme Court?

TAYLOR: Well, I think it's going to go - yeah, I think so. But you're going to find, I mean, the Supreme Court and all of the courts, yes, they're purist, but they also have to know that at the end of the day, their decisions, their precedent will have significant impact on how employers and the broader community respond. I think we're going to see a court that's far more sympathetic, given that we have 300,000-plus lives lost already. And although vaccines are on the way, you know, widespread availability is not likely to be a reality until the second quarter of the year, the courts are going to give employers, I fundamentally predict, a lot of room here.

SHAPIRO: Johnny Taylor Jr. is president of the Society for Human Resource Management.

Thanks for talking with us about this.

TAYLOR: Be well. Transcript provided by NPR, Copyright NPR.

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