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Vaccination requirements could pose safety concerns against ADA, Title VII



Workplace safety rules may conflict with federal protection of individual rights if employees resist potential employers' efforts to require them to take a potential COVID-19 vaccine, but safety considerations are likely to be more important in court, several legal experts say. [19659002] As the country struggles with unprecedented closure of schools and businesses and the threat of widespread coronavirus infections, several vaccine groups have reported promising early results.

If successful initial studies lead to mass production of one or more vaccines – which some experts say could happen before the end of the year – questions remain as to whether all workers will accept the vaccine as a protocol to prevent the spread of COVID-1

9 and whether employers can force them to take the vaccine as a condition of coming to work. [19659002] "When there is a vaccine, it will be a game changer, but it will raise issues," said Dennis Brown, executive shareholder in San Jose, California, the office of Littler Mendelson PC, which represents employers.

"Because COVID-19 is highly contagious and dangerous for some people … there will be a great rush of employers to require vaccinations, and some of this is driven by fear, he said." Employers will be under enormous pressure to demand the vaccine. "

But Mr. Brown and other employment law attorneys say they support challenges to vaccine requirements.

Employers may require vaccines to comply with regulations such as the US Occupational Safety and Health Administration's general customs clause, requiring employers to provide safe workplaces, but they also face requirements for complying with legal exemptions for individuals on the grounds of health or religion.

Section VII of the Civil Rights Act, for example, abolishes employment discrimination on the grounds of, among other things: religion, and Americans with Disabilities Act provides that a disabled person may be exempted from receiving mandatory vaccination and are certain conditions.

"Department VII and ADA Disability Rooms are not new to employers, but this context is new," said Casey Denson, a new Orleans-based employment law attorney for his own company, Casey Denson Law LLC, who represents employees. She said there is no legal precedent regarding COVID-19 vaccine exemptions, so it is unclear how the courts will decide.

Mr. Mr Brown said the courts were "less hospitable" to religious exemptions than to medical problems "as a general rule" and that the pandemic could further tip the scales from accepting personal religious exemptions to protecting all workers and businesses. Overall, in health care settings, exceptions are almost never so "the balancing test you go through between individual freedom and public health and safety leans heavily on public safety," he said.

The U.S. Employee Gender Equality Commission in March updated its guidance on employment, illness, and individual rights to include COVID-19 in its language, pointing to other entities such as the Centers for Disease Control and Prevention and laws such as the ADA for clarification.

How the EEOC guidelines would apply to a COVID-19 vaccine remains to be seen, says Denson.

"It will depend on the type of business you have, whether you are interacting with colleagues, clients or older individuals" has been shown to be at risk for COVID-19 complications, she said. "Even if we have a legal framework for deciding on vaccines, it will be a complicated decision."

"We need to see how things play out," said David Kurtz, Boston-based partner of Constangy, Brooks, Smith & Prophet LLP, who represents employers.

"In the case of influenza vaccines, the EEOC said that employers should consider encouraging people to get vaccines but not forcing them. (COVID-19) will completely shake things up. One of the things that is so unusual about COVID-19 is when people have the flu that they know about it; when it comes to COVID-19 you hear that people are asymptomatic. This is part of the problem that employers face.

Samuel Burgess, Syracuse, New York-based senior adviser to Bond, Schoeneck & King PLLC, said the courts are likely to work with employers seeking to protect the entire workforce through mandatory vaccinations. [19659002] "We have seen this in the school context of measles and the demands for influenza shots in health care and how the courts aim to look at the protection of the public and the greater good," he said.

"It could be a government mandate" for everyone to get the COVID-19 vaccine, says Mr. Burgess, whose company represents employers.

"With COVID, what it is now and is as deadly as we have seen, and spread as it has, it has the potential for the employer to have a better corporate defense argument to (require vaccinations) "he said, adding that" the direct threat to other employees "working with someone who is not vaccinated against the virus" can be the motivation to get around these exceptions. "

Hermes Fernandez, an Albany, New York-based member of the Bond, Schoeneck & King & # 39 ;s Health, Government and Regulatory Practices and a former head of the New York Bar Association's health department, said mandating vaccinations is not". unusual. " Schools, for example, have long demanded that they prevent the spread of diseases such as measles, he said.

The Bar Association has formulated a position that it is expected to vote to accept in November, and calls for mandatory vaccinations, he said. "Most states have laws on vaccines," he said. "It's actually a common idea to say that at some point … a COVID-19 vaccine should become mandatory."

Ms . Denson said employers should support employee resistance to a vaccine. The policy for this has been so divisive; I suspect the vaccine will be as politicized as the worm, she said.


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