Once a COVID-19 vaccine becomes more widely available, will employers be allowed to require it as a condition of employment? According to labor and employment lawyers, the answer is: yes, but not yet.
Laws have been on the books allowing vaccine mandates for some employees, but COVID-19 is a little different. Here’s why.
Emergency Use of the Vaccine Impacts Employer Rules
The latest news from around North Texas.
COVID-19 vaccines are currently under an Emergency Use Authorization by the FDA.
Sarah Mitchell Montgomery, an attorney at Jackson Walker who specializes in labor and employment law, explains there is not a clear basis in the law for an employer to require employees to be vaccinated against COVID-19 under the EUA.
It is possible federal authorities could later make an exception for COVID-19, but there’s no indication that will happen.
“I do think the door is still open to the possibility that we could have a mandate or have the ability to mandate under the EUA. At this point, that has not happened yet,” explains Montgomery.
When healthcare workers at Methodist Dallas Medical Center were among the first North Texans to get a COVID-19 vaccine in December, it was voluntary for employees – according to the hospital. That’s the case for Parkland Health and Hospital System workers too.
Want to Get on a Vaccine Waitlist?
As the state begins to distribute the COVID-19 vaccines for those in Phase 1A and 1B, county health departments have begun waitlists for those wish to be inoculated.
You can now register to recieve the vaccination in Collin, Dallas, Denton and Tarrant counties. Links are below:
You do not need to be a resident of the county to register for a COVID-19 vaccine in that county -- registration is open to anyone in Texas. For those without internet access, Tarrant County is also taking registrations by phone at 817-248-6299. In Dallas County, call the DCHHS vaccine hotline at 469-749-9900. In Denton County, call 940-349-2585.
For a more detailed breakdown of who is included in each priority group in Texas, see this page from the Texas DSHS.
What Happens When a COVID-19 Vaccine Gets Full FDA Approval?
“Once it becomes fully licensed, then there really is no question they can mandate it,” said Montgomery.
In December, the Equal Opportunity Employment Commission published guidance reaffirming employers can require the COVID-19 vaccine unless an employee has a religious or medical exemption.
Montgomery points out, just because employers could require the vaccine does not mean they will.
Companies would have to manage exemption requests and could open themselves up to legal disputes.
If employees are already working from home and limiting their exposure to each other, companies may not want to take on a vaccine requirement.
Instead, Montgomery expects industries, where potential exposure is tougher to manage, will likely require the vaccine. Employees in healthcare or even manufacturing could anticipate a vaccine requirement in the future.
“I think you're going to see more employers in the healthcare field, nursing homes, those with large warehouse facilities where you have a large number of employees working together or manufacturing, where they can't really be spread out and they can't work remotely. Those are the employers, I think, that are going to want to jump on this idea of mandating the vaccine,” said Montgomery.
Encourage versus Mandate
For employers in other settings, Montgomery says she’d tell companies to consider incentivizing vaccine acceptance and encouraging it.
“Recommending it, leading by example, having those high level, C-suite employees get the vaccine and tell their workforce why, from a scientific standpoint, from a health standpoint, it's a good idea,” said Montgomery.
That’s the game plan for Joel Patterson, CEO and Founder of The Vested Group - a technology company based in Plano.
Patterson says his leadership team does not plan to mandate the vaccine. Choosing, instead, to encourage employees to get it.
“We want to encourage as much information and communicate,” said Patterson.
“We'll make it as easy as we can, we’ll pay for it. If we have to have somebody come here to administer it so it's simpler for people, by all means, we'll do that,” Patterson added.
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*Map locations are approximate, central locations for the city and are not meant to indicate where actual infected people live.
**County totals below include all 32 North Texas counties, not just Collin, Dallas, Denton and Tarrant.