Baltimore employers: Maybe we shouldn't rush this vaccination requirement

Here’s a question that going to require some investigation by the legal eagles in the audience. Can your employer order you to get a vaccination and submit you to disciplinary action or even termination if you don’t do it? Perhaps surprisingly, the answer is yes… with certain restrictions. Thanks to a December ruling from the Employment Opportunity Commission, employers can make a COVID vaccination a requirement for coming to work. But at least for now, that’s not something that a lot of employers want to do. Prime examples can be found in Baltimore, Maryland, where some of the largest employers in the city are “encouraging” workers to get their shots and some are even incentivizing the idea. But it’s not mandatory yet. (Baltimore Sun)

Employers generally have a right to require vaccinations — but so far, many Baltimore-area workplaces are choosing not to do so with these vaccines, currently approved only for emergency use amid the coronavirus pandemic.

Many employers are reluctant to mandate the shots given the limited availability of the vaccines and new legal questions to ponder as a result of the pandemic and the fast-track process used to approve them by the U.S. Food and Drug Administration. Some, though, are encouraging workers to get inoculated by offering incentives or running education campaigns.

Under Armour, Amazon and Giant Food are among the area companies that say the vaccine is voluntary for their employees.

If your employer is telling you that you have to get vaccinated, there are two exceptions that they must honor. If you object on religious grounds or can show that you have an underlying condition (e.g. allergies) that would make it dangerous for you to do so, they can’t force you. They can, however, relocate you or offer you the opportunity to work remotely in those cases.

So why aren’t more employers already doing this? Some in Baltimore cite the number of concerns that workers express about the newness of the vaccines and their potential side effects. Others are concerned over the potential for lawsuits if they attempt to force the issue. Most of those employers are simply offering education programs to encourage their workers to get a shot. Some have gone so far as to offer cash bonuses for those who get it done.

One of the biggest factors, however, is the inability of the workers to actually get vaccinated even if they wanted to comply. If you’re working at Amazon or Walmart, you’re not considered a “front line” worker in the 1a group by default. Not that many people working those jobs are over 75 or even 65 years of age. If you don’t have proof of an underlying medical condition that would move you to the front of the line, you’re probably not even eligible to get a shot yet.

For that matter, even the people who do qualify for the 1a and 1b groups are running into long delays when trying to get an appointment. One friend of ours managed to access the reservation web site here and finally was given an appointment after a week of trying, but their appointment is for the end of March.

With all of that in mind, I’m fairly sure most employers realize that if they tried to impose such a mandate right now and they terminated an employee who was unable to find a place to get vaccinated, they would quickly wind up the target of a lawsuit that they would almost certainly lose. Perhaps later in the year, assuming the rollout isn’t subject to further disastrous mismanagement, employers will start doing this. But I predict a bevy of lawsuits following that decision anyway.