As government and health officials work to execute a massive operation in vaccinating the nation as quickly as possible, employment attorneys are keeping busy speaking with their clients — both employers and employees — on how, when, and if employees would get vaccinated.
While experts agree there are many unknowns since this country hasn’t faced a health pandemic on this scale in 102 years, they all agree on one thing: Decisions employees and employers make on vaccinations will affect not just themselves but those around and close to them.
“Without exaggerating, this is the most consequential employment issue of our lifetime because it affects every employee in this country,” said Quinnipiac University School of Law adjunct professor Michael Soltis.
Soltis, who has represented employers in the area of employment law for more than four decades, continued: “To the extent that this virus is passed through asymptomatic individuals, that means decisions affect not only the employee but also the employee’s family, friends and other contacts. It has the potential to affect 300 million people in this country.”
Protections for employee protections
Experts say employees stand on very good legal ground if they refuse a vaccine for religious reasons or if they have a disability. Both are protected in some states.
Federally, the 1990 Americans with Disabilities Act protects those with disabilities, and religious exclusions are protected under Title VII of the Civil Rights Act of 1964. The ADA and Title VII are triggered if there are 15 or more employees.
Employment attorney Nina Pirrotti said for those areas where religion and disability don’t come into play, “these are uncharted waters, but I expect employees to have an uphill battle” if they decide to fight any vaccine mandates their bosses put on them.
“The employee could be faced with the choice of adhering to the mandate or finding another job that doesn’t have that requirement,” said Pirrotti of Garrison, Levin-Epstein, Fitzgerald & Pirrotti in New Haven.
While employees who don’t adhere to mandated vaccines could file lawsuits against their employer, the same can be said for businesses that don’t require vaccinations, Pirrotti said.
“If a company doesn’t require a vaccine and someone gets sick and spreads it to fellow colleagues, that could also mean lawsuits,” Pirrotti said.
But without the religious and disability exceptions, University of Connecticut School of Law professor Sachin Pandya said, “the options of those who don’t want to take the vaccine are limited.”
While Pirrotti and Pandya say employees who refuse to be vaccinated and are doing so not on religious or disability grounds face an uphill legal battle, Soltis said some could make emotional-distress or invasion-of-privacy claims. “The claims have to be creative,” Soltis said.
“One could argue that requiring someone to inject a vaccine into their arm is invasive,” said Soltis, who declined to venture a guess on how he thinks such claims would be viewed in a court setting.
Federal officials should step up, some say
Soltis said the Centers for Disease Control and Prevention should take a stand.
“The first step is for the CDC to say whether they recommend that employers require their employees to be vaccinated. They haven’t done that yet,” Soltis said.
Soltis said the federal Equal Employment Opportunity Commission could then “amend its guidance to follow the CDC recommendations to allow employers to require employees to be vaccinated.”
While nothing in court is guaranteed, Soltis said such an announcement from the CDC “would tell judges and everyone else that this is the direction we need to go to maximize safety in the workplace.”