BOSTON (CBS) – Now that the COVID-19 vaccine is becoming more widespread and some universities have announced it will be mandatory for students, people working from home are wondering: what will it take to get me back in the office? Can my employer mandate the COVID-19 vaccine?
“The answer is a very strong and definitive maybe,” legal expert Jennifer Roman told WBZ.
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“The employer can require that, yes,” employment attorney Patrick Curran said.
“They likely can,” Boston University Health Law professor Michael Ulrich added.
Safe to say — the jury’s still out, but all three legal analysts who spoke to WBZ agree, the answer is likely yes: your employer does have the right to mandate you get vaccinated to come to work.
“Vaccine mandates have been upheld for over a century both by the government and employers but those are typically well known, well established vaccines,” Ulrich explained.
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That’s where the gray area in this case comes in: there is no roadmap or precedent for an emergency-approved vaccine designed for the general population.
Because the COVID-19 vaccines themselves were approved by the FDA through an Emergency Use Authorization, they were required to come with a warning: that the person taking the vaccine knew it was completely voluntary.
“Although an employer may mandate it, the employee also needs to be told that they really don’t have to be vaccinated if they don’t want to be,” Roman explained. That’s the loophole, she says, that has the potential to create legal trouble for companies who may want to mandate vaccinations.
Still, to date, both government and private entities have been successful in mandating vaccines, thanks to the precedent set by the Supreme Court case Jacobson v. Massachusetts back in 1905, in which a Cambridge man did not want his mandated smallpox vaccine. However, the Supreme Court sided with the state, establishing that “there are times when the government can infringe on your rights to some extent to protect you and everyone else,” Ulrich explained.
Another potential hurdle? “You might come up against discrimination laws if someone says I have a disability or a religious exemption,” Ulrich said.
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Patrick Curran, a Boston attorney specializing in employment issues, agreed. “There are administrative difficulties; there are potential liabilities that you have,” he told WBZ. Curran says he’s had several clients ask about mandating vaccines for their employees in recent weeks, but most have decided against the practice. “It’s become a very hot topic,” he said.
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