Employers may be able to mandate COVID-19 vaccine, but will they? – Crain’s Detroit Business

As health systems prepare for the arrival of COVID-19 vaccines for frontline workers in Michigan possibly as early as Friday businesses across the state are weighing their options for making their employees get vaccinated.

When the U.S. Food and Drug Administration provides full approval later this year for the vaccine, it's expected employers will legally be allowed to mandate vaccination. But following through on a mandate is murky, culturally and politically, in a divided nation during a pandemic that's left fissures in how employees view the virus.

The U.S. Food and Drug Administration is expected to approve emergency use authorization for the Pfizer COVID-19 vaccine as early as Thursday. Under the EUA, employers are required to provide an option to refusevaccination. Only frontline workers in hospitals, nursing homes and other care facilities are expected to be offered the vaccine through their employer until the FDA fully approves the vaccine in the coming months.

Michigan hospital executives are not expected to mandate the vaccine for employees, at least initially, to sidestep any issues under the EUA.

The University of Michigan Health System, Henry Ford Health System, Beaumont Health, Trinity Health Michigan and Ascension Health said they have no plans to mandate.

Officials from Beaumont and UM told Crain's they haven't decided yet what to do if health care workers who should receive the vaccine refuse to take it. They said it is possible those health care workers could be transferred to non-COVID-19 units or other duties, although that may prove difficult with already growing staff shortages.

Betty Chu, Henry Ford's chief quality officer, said the six-hospital health system sees no need to reassign any staffer who declines to receive the vaccine.

"While we will highly encourage our front line workers to be vaccinated, we will not require that they do so," Chu said in a statement to Crain's. "Vaccinated or not, all of our front-line healthcare workers must adhere to our mask wearing, (personal protective equipment) guidelines and all of our safety protocols, which are highly effective in protecting them and those with whom they are in contact in the healthcare setting."

Only one other vaccine has ever been approved in the U.S. on the EUA basis anthrax. Beginning in 1998, the U.S. Department of Defense made the anthrax vaccine mandatory for high-risk personnel but the program was suspended in 2004 after a federal judge determined the FDA did not follow protocol on authorizing the inhalant version of the vaccine. The Defense Department was discharging military personnel who refused the vaccine. In 2005, the FDA approved the vaccine on a EUA basis and the Defense Department resumed vaccinations but on a voluntary basis with the option of transferring high-risk personnel away from positions with high-risk potential for anthrax poisoning.

And while local governments have legally mandated vaccines in the past New York City officials mandated the measles vaccine in 2019 to anyone more than 6 months old who lived, worked or attended school within four Brooklyn ZIP Codes it's unlikely Michigan health officials will pull that lever.

"We're not looking at implementing that in the state of Michigan," Dr. Joneigh Khaldun, chief medical executive and chief deputy director of the Michigan Department of Health and Human Services, told Crain's. "I will say, though, I do think this vaccine is the path out of this pandemic. And I think that every employer has a role to play when it comes to at least encouraging their workers to get the vaccine."

Employers will have more authority to mandate the vaccine once the FDA provides full approval for the inoculations, which is expected later this year.

Under U.S. Equal Employment Opportunity Commission guidelines, COVID-19 qualified for the American with Disabilities Act standards of a "direct threat" that permits more extensive medical inquiries and controls in the workplace than under normal conditions. Because of this, it's expected the EEOC will back employers who choose to make the vaccine mandatory when it becomes widely available. Courts have previously upheld employer rights to mandate vaccines, as many hospitals did during the 2010 H1N1 flu outbreak.

The EEOC guidelines, set in March, allowed employers to put in place medical testing and other measures the ADA typically does not permit, such as taking employee temperatures and certain screening questions. But the guidance also prohibited mandates for vaccines, which weren't developed then. That prohibition is likely to change soon, said Elisa Lintemuth, partner and compliance attorney for Detroit-based Dykema Gossett PLLC.

"The EEOC knows this is going to be a big issue," Lintemuth said. "I'd expect guidance very quickly after the EUA approval."

However, just because an employer can mandate a vaccine, actually doing so may prove difficult. COVID-19 has become politicized since the outbreak began in March.

"I think mandates are going to vary dramatically form workplace to workplace," Lintemuth said. "Some of it might be based on political and ideological beliefs of upper management."

But some employers may be willing to step on ideology in favor of returning to a functioning workplace, said Sara Jodka, partner and compliance attorney for Detroit-based corporate law firm Dickinson Wright LLP.

"Manufacturers, for instance, are losing money," Jodka said. "They are paying people that are getting sick or taking care of family members. At the end of the day, this is for worker protection. Employers don't want to see employees sick. They are attempting to get back to some sort of normalcy. Masking or distancing doesn't appear to be working. This is what these employers are pinning hope on so their business can get back to normal."

But employers will have to contend with workers seeking exemptions for the vaccine. Under the ADA, workers are allowed to opt themselves out from receiving the vaccine for health or religious reasons, but it's a narrow spectrum.

Employers have the right to prod an employee about the specific religious belief or medical condition that prevents them from getting a vaccine, such as pregnancy or an autoimmune disease, Jodka said. Employers can fire an employee who refuses the mandate if they do not have sufficient evidence of an exempt status.

"We've been through this with flu vaccine mandates," Jodka said. "The EEOC is going to stand by employers. An anti-vaxxer, for instance, is going to have to show an underlying medical condition and being an anti-vaxxer is not one. They are going to have to come forward and show those diagnoses. All an employer has to do is prove there is there a justification and a business necessity to require a vaccination. With a pandemic killing almost 3,000 people a day, they could easily show a business need."

But it's more likely companies will at least try to work with employees who do not wish to receive the vaccine, Lintemuth said, such as forcing those employees to continue to work from home if they are able to do so or maintain the current requirements of social distancing and mask wearing.

"It's really going to depend on how much of the workforce ends up objecting," Lintemuth said. "Whether the employer is risk adverse or whether they are willing to respond to employee complaints is the ultimate decider. We have to remember, no one is sure what the threshold is for herd immunity. Once we know more, you'll see more decisions being made."

Senior Reporter Jay Greene and Senior Editor Chad Livengood contributed.

Read the original post:

Employers may be able to mandate COVID-19 vaccine, but will they? - Crain's Detroit Business