Employers Start Preparing for The Coronavirus Vaccinewith a Question: Can WeRequire It?By Jena McGregor

As news of promising progress on coronavirus vaccineshave filled the headlines in recentweeks, labor lawyers say employers have been pressingone question in particular: Onceapproved, can they require employees to take it?The news that a coronavirus vaccine could start beingdistributed within the next fewweeks has sent stocks soaring and government officialsscrambling to develop plans forthe herculean task of distributing it across the country.For employers, many of which have kept workers homefor months, it has opened acomplex set of legal and practical issues: Can theyrequire employees to take a vaccine?Should they offer incentives instead to encouragecompliance? And what should they do ifemployees resist?“You’re going to have a lot more people who are lackingcomfort about safety” of thevaccine after such a short development timeline, saidBrett Coburn, a labor andemployment lawyer. “Add on top of that the politicalissues that have unfortunately takenover. If someone’s not willing to wear a mask, doyou think they’re going to put a shot intheir body?”It will likely be months before anyone besides healthcare and other essential workershave access to the vaccine. On Tuesday, an advisorypanel to the Centers for DiseaseControl and Prevention said health-care workers andlong-term care residents and staffshould get top priority for the vaccine.In the meantime, employers are waiting for specificguidance from federal agencies suchas the U.S. Equal Employment Opportunity Commission(EEOC) and the CDC beforesetting corporate policies, employment lawyers say.The biggest difference between requiring employeesto take a vaccine for the coronaviruscompared with the flu or other vaccines — which health-careorganizations have longrequired — is that covid-19 vaccines are expectedto first be available under an“emergency use authorization” rather than a full FDAlicensure.Once a coronavirus vaccine receives formal governmentapproval, employment lawyerssay it’s more likely to be treated like the flu shot,which can be mandated, even if it’scurrently rare outside the health care field.

Some big corporations say they are beginning to prepare, if not necessarily issuingmandates.Ford said Nov. 24 that it ordered a dozen specialtyfreezers to store Pfizer’s coronavirusvaccine at ultralow temperatures, and would make thevaccine available to employees “ona voluntary basis,” said spokeswoman Kelli Felker.Target spokeswoman Jenna Reck said in an email thatits coronavirus task force is closelymonitoring vaccine developments and plans to offerit to employees and customers at itsin-store CVS pharmacies once a vaccine is authorizedand made available to the public.Reck said she did not have additional details whenasked whether a vaccine would berequired.For many employers, the big question will be not justwhether they can mandate thevaccine but whether employees would be willing totake it.Employers that plan to mandate a vaccine may facedilemmas in enforcing the rule. “Whatif it’s not just one or two people who refuse to getit, but it’s a whole bunch? Are you goingto fire a material part of your workforce?” Coburnsaid.While employers may be able to draw some lines aboutwho must get the vaccine — suchas those who work directly with customers and thosewho don’t — implementing amandate in piecemeal fashion could prompt some employeesto sue for discrimination. “Ifthe repercussion is not across-the-board termination,either you’re going to have atoothless mandate or you’re going to put yourselfin a position where you may be pickingand choosing,” he said.Offering employees incentives to get the vaccine maybe more effective, some experts say.David Barron, an employment lawyer with Cozen O’Connor,said clients are alreadylooking into how they can use wellness programs toreward employees who take thecoronavirus vaccine with gift cards or discounts onhealth insurance premiums, much asthey would with getting a flu shot or following otherhealthy habits.“Most large wellness programs have those mechanismsalready in place, so you’re reallyjust piggybacking and adding a covid vaccine in thatlist,” Barron said.Even small nudges could prompt employees to get thevaccine, said Lawrence Gostin,faculty director of the O’Neill Institute for Nationaland Global Health Law at GeorgetownLaw School. A global survey he co-authored found that61.4 percent of employeessaid(Links to an external site.)they would likely get a covid-19 vaccine if theiremployer recommended it.