The pandemic unfortunately hasn’t conveniently disappeared, even though in many parts of the U.S. life has returned to something resembling near normality. The principal reason why this improvement has happened, even if it hasn’t been perfect, is the availability of safe, effective vaccines against the SARS-Cov-2 virus. The principal reason why life hasn’t returned to normal faster is that the number of people getting vaccinated has stalled somewhat as a result of misinformation, vaccine hesitancy and the spread of the most transmissible variant of the Covid virus yet, in the form of Delta.
Should employers make it compulsory for employees to get fully vaccinated?
Vaccine mandates for employees have become another hugely controversial topic. Aside from questioning the legal ramifications of vaccine mandates, there are very good reasons why employers should insist that their employees are vaccinated. The vaccines available to combat Covid-19 are free and don’t cost the employer or employee anything. They are also very effective in preventing serious illness and death, even though it appears that with the Delta variant now rampant, vaccination doesn’t 100% prevent the risk of infection and infected people who have been fully vaccinated still have a risk, albeit a reduced one, of transmitting the virus to others.
Employers who employ fully vaccinated workers are less likely to suffer absenteeism because of sickness, and are less likely to run the risk of employees who become sick at work applying for workers compensation. Their employees will be healthier and more productive.
From a more social perspective, vaccination mandates might encourage greater vaccination rates and there is near unanimous agreement amongst public health officials that this is a good thing for society as a whole.
Is vaccination mandating legal in Massachusetts?
The short answer is yes, at least for state and local government employers. By coincidence, one of the reasons why it is legal is because of an obscure decision by the Massachusetts Supreme Court back in 1905. The court made the ruling after the Cambridge, MA city government had mandated vaccination by its residents over 21 against smallpox in 1903, with those found to have breached the mandate forced to pay a $5 fine. A pastor was so incensed at being fined that he appealed the fine by taking his case to the state’s Supreme Court. The Supreme Court upheld the validity of the vaccination mandate in Jacobson vs Massachusetts, a decision which still stands today, although the verdict may not apply to the federal government as an employer. Of course, this won’t stop employees who object to a mandate applied to them trying to test the legality of an employer mandate, but unless there is a serious attempt to reverse the law, they are unlikely to succeed.
How at will employment affects vaccination mandates
The majority of waged employees in Massachusetts are employed on at-will conditions, just as employees are right across the country. At-will employment allows employers to fire an employee for almost any reason at anytime. Employees have the same ‘privilege’ in that they can leave employment when they want to as well, without notice. There are exceptions, which include employment contracts that have been agreed to as a condition of employment. These may limit what an employer or an employee can do in terms of termination. The other limitations concern acts of discrimination which will be explored further below.
Basically, then, as long as at-will employment is in force, an employer can insist that its employees become fully vaccinated and if they refuse, they can be fired without having to justify their decision. This would be perfectly legal with only a few exceptions.
What about employees who claim that a vaccination mandate could discriminate against them because of their religious beliefs or because of a medical condition they have? Employers cannot legally terminate an employee, even one working at will, just because of their religious beliefs. Discrimination legislation, both federal and state, prohibits many forms of workplace discrimination. Feasibly, an employee could challenge a vaccination mandate by a private or government employer if they allege that this would be an act of discrimination against them because of their religious beliefs (citing Title VII of the Civil Rights Act, 1967) or because they have a medical condition that prevents them from being vaccinated (citing the Americans with Disabilities Act). In these probably rare situations, the employer may still be able to insist that the employee is regularly tested instead of vaccination, or provide ‘accommodations’ which allow the worker to be employed if other restrictions prevent potential transmission, e.g. mask wearing, physical distancing, working from home, etc.
Why shouldn’t employers just advise employees to get vaccinated rather than mandate it?
The problem with not making vaccinations compulsory in a workplace is that the unvaccinated can still spread the virus to others, including those who have been vaccinated. The Delta variant has an R value of around 6, which means that a single worker can spread the virus if infected to 6 other workers if conditions are favorable. All it takes is a single unvaccinated employee to infect a whole workforce, through rapid cycles of infection. This could cause the employer to be forced to shut down operations and face claims for workers’ compensation, medical leave and even possibly personal injury claims if infected employees make a case for their infection occurring because of negligence.
One of the alternatives in place of vaccination is regular testing. Rapid antigen tests and other even more recent technologies, as long as they are used routinely and regularly, could be used by employers to help prevent the spread of infection into their workplace, but again to be effective this testing regime would presumably have to be as compulsory as vaccination itself.
Vaccination certificates, mask mandates, vaccination mandates and other strategies to keep people, including workforces, safe will probably be with us causing controversy and throwing up legal questions for some time. Employers who are yet to make a decision about vaccine mandates are certainly advised to get professional legal advice before committing themselves if they are unsure whether they are doing the right thing.
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