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It is generally legal in the United States for an employer to fire employees who refuse to follow workplace rules, with the exception of a few. While we would never give anyone unemployment, this is the right position legally and ethically, and there is no good reason for a different treatment of Covid-19 vaccine requirements.
At least 10 states have proposed bills banning private employers from prescribing that their employees must be vaccinated against Covid-19 as a condition of their earnings. Such bills are poorly considered and wise. Implementing it would unfairly restrict the right of employers to run their businesses safely. They are also unnecessary because federal law already protects some employees against unfair discrimination.
Covid-19 has not only killed hundreds of thousands of Americans and damaged tens of millions more, it has also had a dramatic and traumatic impact on American industry. Many small businesses have closed. Others have lost large sums of money or had to significantly reduce their hours or the number of customers they serve. Many people have to be allowed to leave, whether through the direct impact of the pandemic on the health of workers in general, because people are afraid to take up jobs in high-visibility places, or on due to important public health measures.
Covid-19 vaccines offer hope both in reducing mortality and for the sick economy. The vaccines are safe and will work. Businesses from airlines, hotels and restaurants to nursing homes and manufacturing centers are seeing employees fully vaccinated as a way to protect themselves from future breakdowns.
Traditionally the law allows private companies to set working conditions that protect their employees and customers. Usually, if blocked by the state, it wants to add safety measures, without prohibiting employers from working to increase safety. It makes no sense to sing safe and effective Covid vaccines as somehow involving a workplace full of less effective safety requirements.
It is likely that most employers will not prescribe Covid-19 vaccines immediately. A recent study found that less than 1% of companies responded to vaccine orders. Those jibes with an informal vote we saw of 10 Fortune 500 companies, which showed none ready to order. Of course, employers looking to raise vaccine levels are currently exploring various incentives to motivate employees to do so. Starbucks offers two hours off time for each bullet. Others pay employees to be placed, including Lidl with $ 200 in additional pay, and Kroger offering $ 100.
If a private company decides that a command is the best tool to protect its employees and customers, the state should not ban it. After all, a private employer can traditionally decide who should be hired for any reason, with very few exceptions based on anti-discrimination laws. No one should force a private company to hire safety breakers. People can’t say “I don’t like your rules, I won’t follow them. Don’t forget your hard hat or your hand wash. You have to hire me anyway. “
Why is Covid-19 vaccination the exception and forcing employers to hire people who don’t like their policies? Such people may choose to go to work elsewhere. Vaccines do not equate to an ad requirement, but are in line with previous workplace requirements. Many health care facilities already require a set of vaccines as a condition in the workplace, including whooping cough, measles, rubella, hepatitis B, and annual flu vaccines. Some restaurants have asked employees to get the hepatitis A vaccine, especially after periods. With few but local, states largely allow employers to request vaccines. Why treat Covid-19 vaccines differently?
Federal protections already exist for workers who cannot get the vaccine. The Americans with Disabilities Act requires employers to provide accommodation for employees with disabilities, unless this is a significant burden. Under the Civil Rights Act 1964, there are protections for those with religious complaints about vaccines that provide them with accommodation as long as they do not impose an undue burden on the employer.
Employees have a right to a safe workplace. Customers may want a safe environment, and businesses may prefer what it offers. If the employer thinks a vaccination order is the best way to get to a safe workplace or if a private business wants to present itself as taking all the steps to reduce Covid-19, the introduction of prescription vaccines, it should be able to select that option.
Dorit Reiss is a professor of law at the University of California, Hastings College of Law.
Arthur Caplan is director of the Department of Medical Ethics at New York University’s Grossman School of Medicine.