Can an employer mandate the COVID-19 vaccine?
BATON ROUGE - More people are vaccinated against coronavirus in Louisiana with the shot now made available to every adult.
With that availability comes talk from bosses at businesses about whether the vaccine should—or can—be required for employees. As one Baton Rouge attorney explains, there's a lot of gray area, and it'll probably take a judge to decide.
"It can be mandated, but it requires several things that have to be required and met," attorney Ben O'Connor said.
O'Connor says an employer must prove there's a direct threat posed by not having employees vaccinated in the workplace. And according to the Equal Employment Opportunity Commission, if there is a direct threat, the employer can exclude the employee from physically entering the workplace. But it doesn't mean the employer can automatically terminate the worker.
"Right now, it's working its way up through several courts in some states," O'Connor said. "It's going to take some time until it gets to the United States Supreme Court, where they'll set the precedent and establish what's permitted and not permitted."
The courts are taking a look at prior case law for guidance. Those cases dealt with individuals that had a right to be excluded from a mandate and either involve a disability or religious aspect.
O'Connor says it looks like a lot of courts are still agreeing with those exclusions. Employers and large institutions are taking their time to decide about mandates because there is so much gray area. For example, LSU says no decisions have been made to mandate the vaccine, but there is an ongoing discussion with the administration about it. Rutgers University in New Jersey said it would require all of its students to be vaccinated to attend fall classes on campus.
The Louisiana Department of Health says no state mandate requires anyone to be vaccinated. It is a personal choice to get vaccinated, though the department strongly encourages people to get vaccinated as soon as possible. The Louisiana Department of Education has a similar take and says it has not had any discussions about mandating vaccines.
According to the EEOC, an employer can ask whether or not an employee has received the vaccine and ask for proof of that vaccination. The employer cannot ask why an employee has not received the vaccine. There are many reasons why an employee may not be vaccinated, which may or may not be disability-related.
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