Video 1: “Back to Work: Can Employers Legally Mandate Vaccinations?”
Note: This video is related to Article 1 (“VA Requires COVID-19 Vaccination for Health Care Workers”) of this newsletter.
1. As the video indicates, as a general rule of employment law, employers can fire employees for refusing vaccinations. What is the legal theory supporting this employer right?
The legal theory supporting the employer right to fire employees for refusing vaccinations is the employment-at-will doctrine, a common law doctrine holding that as a general rule, an employer can fire an employee for any reason or for not reason at all. According to the rationale behind this rule, if the employer does not even need a reason to terminate an employee, the employer can certainly terminate an employee for a reason such as violating company policy (for example, one mandating vaccination) and/or imperiling the health of coworkers, customers, etc.
2. As the video indicates, one exception to the general rule that employers can fire employees for refusing vaccinations is medical reasons. Comment on the propriety of this exception.
This is an opinion question, so student responses may vary. In your author’s opinion, if the best medical evidence supports the conclusion that an employee’s health could be substantially compromised if the employee takes a vaccine, that risk could outweigh the benefit of requiring vaccination. Your author supports this exception if it is supported by credible medical documentation with evidence supporting such a conclusion to a reasonable degree of medical certainty.
3. As the video indicates, another exception to the general rule that employers can fire employees for refusing vaccinations is religious reasons. Comment on the propriety of this exception.
This is an opinion question, so student responses may vary. In your author’s opinion, this exception is more prone to abuse (by the employee requesting the exception) and criticism by those who oppose the exception. How can an employer actually establish that opposing vaccination is a religious tenet to which the employee truly subscribes?
Video 2: “Medical Groups Call for Mandatory Shots for Health Care Workers”
Note: In addition to the video, please also see the following article included at the above-referenced internet address:
“Over 50 Major Health Care Organizations Call for Mandating Vaccines in Their Own Industry”
According to the article, the American Medical Association and the American Nurses Association have joined up with over 50 other health care organizations to call for mandatory vaccinations in their industry, citing rising COVID cases and their trust in the vaccine.
“Due to the recent COVID-19 surge and the availability of safe and effective vaccines, our health care organizations and societies advocate that all health care and long-term care employers require their workers to receive the COVID-19 vaccine,” the organizations wrote in a joint statement on Monday morning.
Between them, these health care organizations represent millions of physicians, nurses, and other health care workers across the country, including pediatricians, oncologists, and pharmacists.
And they don’t think the health care industry should be the only one to require vaccines. They also called on other industries to follow suit.
“As the health care community leads the way in requiring vaccines for our employees, we hope all other employers across the country will follow our lead and implement effective policies to encourage vaccination,” the joint statement said. “The health and safety of U.S. workers, families, communities, and the nation depends on it.”
According to the Centers for Medicare and Medicaid, just 58% of nursing home staff are vaccinated. According to one estimate in late May, 1 in 4 health care workers were unvaccinated in the U.S. In some places, like Florida, the rates were as low as 40%.
Nationwide, the U.S. is struggling to increase its vaccination rates past 50% of the total population, including children, and missed President Joe Biden’s goal to get 70% of adults vaccinated with one shot by July 4. As of July 21, 2021, about three weeks later, still just 69% of adults had met that goal, while 60% of adults were fully vaccinated, according to Centers for Disease Control and Prevention data.
The influential statement has the potential to move the needle on an issue that, so far, has held up in court and proven to be effective at increasing vaccinations, at least in the health care field. Over the winter, Houston Methodist became the first hospital to require vaccines for its staff, and many hospital systems around the country have followed suit. In Houston, the hospital was sued, but won a lawsuit over the requirement and saw the vast majority of its 26,000-person staff get vaccinated, while around 150 quit or were fired for not adhering to the policy.
That decision spurred a recent statement from another massive health care organization, the American Hospital Association, to call for mandatory vaccinations in hospitals and paved the way for even more to get on board.
“I think it’s incredible to see these organizations come together and make the bold statement to mandate vaccinations, which we know are safe and effective,” said Dr. Jay Bhatt, the former chief medical officer for the AHA.
“We know, as Americans, it’s hard for folks to agree on a lot of things. So if we’re seeing big organizations agree on vaccinations, we should be paying attention to it,” Bhatt said.
In defending their reasons, the groups that came out in support of vaccine mandates said it was necessary for caregivers to protect patients who might be immunocompromised or not yet eligible for a vaccine, and for their own health.
The organizations emphasized their confidence in the vaccines, which are safe and effective, and hinted at the fact that the vaccines would be fully approved by the FDA soon, which will also bring more employer mandates. Currently, the vaccine is authorized under an Emergency Use Authorization, which is a temporary approval.
“As we move towards full FDA approval of the currently available vaccines, all health care workers should get vaccinated for their own health, and to protect their colleagues, families, residents of long-term care facilities and patients. This is especially necessary to protect those who are vulnerable, including unvaccinated children and the immunocompromised,” the joint statement said. “Indeed, this is why many health care and long-term care organizations already require vaccinations for influenza, hepatitis B, and pertussis.”
Recently, the Department of Veteran Affairs announced that it would mandate the vaccine for its doctors and nurses. The decision came after four unvaccinated employees of the department died in recent weeks. The mandate will go into place in two months.
Department of Veterans Affairs Secretary Dennis McDonough said the mandate is “the best way to keep veterans safe, especially as the Delta variant spreads across the country.”
While there is a risk of pushback that could lead to people leaving their jobs, particularly in parts of the country where there is more refusal to get the vaccine, the rising levels of the delta variant, which currently makes up 83% of all cases in the U.S., could also hit hospital workforces hard, particularly for doctors and nurses on the frontlines of the pandemic.
“Either way, there’s a risk of them not being in the workforce. And I would say the cost of getting COVID is great enough that it warrants vaccination,” said Bhatt.
But for those who can’t be vaccinated because of medical reasons, which the groups estimated to be “a small minority of all workers,” they should be evaluated individually.
1. As indicated in the article, the American Medical Association and the American Nurses Association have joined with over 50 other health care organizations to call for mandatory vaccinations in their industry. In terms of the health care industry, given the gravitas of the American Medical Association and the American Nurses Association alone, should not the opinions of these organizations regarding vaccinations be “the end of the matter?” Why or why not?
This is an opinion question, so student responses may vary. In your author’s opinion, great (conclusive) weight should be given to the opinion of the American Medical Association, the American Nurses Association, and the numerous other health care organizations calling for mandatory vaccinations in their industry. In terms of what is best for the health care industry, its health care workers, and its patients, what better regulatory authority is there than those organizations established to self-police their profession?
2. In your reasoned opinion, what is the strongest argument for mandatory vaccination of health care workers? Explain your response.
This is an opinion question, so student responses may vary. In your author’s opinion, the strongest argument for mandatory vaccination of health care workers is greater safety of the workers themselves and the patients to whom they administer care. Medical evidence conclusively establishes that the COVID-19 vaccine is among the best guards against acquiring the dreaded COVID-19 disease, along with social distancing and mask-wearing.
3. In your reasoned opinion, what is the strongest argument against mandatory vaccination of health care workers? Explain your response.
This is an opinion question, so student responses may vary. In your author’s opinion, the strongest argument against mandatory vaccination of health care workers is the “freedom” of the workers themselves (which could include the “freedom” to acquire the COVID-19 disease, become gravely ill, and perhaps die.) In your author’s opinion, the strongest argument against mandatory vaccination of health care workers pales in comparison to the strongest argument for their mandatory vaccination.