A Jab… or a Job? Tension Over Vaccine Requirements at Work

By Erin Jones

         More than two thirds of Americans (69%) intend to get vaccinated against COVID-19, or already have, according to a March survey from Pew Research. Federal and state governments can’t require citizens to get the vaccine. Private employers can’t require it, either.

         But they can fire you if you don’t.

         The U.S. Equal Employment Opportunity Commission (EEOC) says that businesses can require the vaccine. However, the EEOC says other “EEO laws, including the ADA and Rehabilitation Act, continue to apply during the time of the COVID-19 pandemic, but they do not interfere with or prevent employers from following the guidelines and suggestions made by the CDC or state/local public health authorities about steps employers should take regarding COVID-19.”

Now that the vaccine is here, these businesses have a lot of work to do.

Texas COVID 19 regulations and vaccines

On March 6, 2020, Austin Mayor Steve Adler made a stunning announcement: the South by Southwest (SXSW) festival, due to start exactly one week later, was canceled. The mayor was acting on advice from Travis County medical advisors SXSW brings 200,000 visitors to Austin each spring and leaves behind more than $300 million in revenue, according to the Houston Chronicle. The festival – the biggest event in the country to be canceled up to that point – also employs thousands of people. Theirs weren’t the only jobs lost. The day the festival was to begin, March 13, was the day borders, schools, offices, restaurants, amusement parks and communities closed. The U.S. Labor Department reported that new unemployment insurance filings went from 211,000 on March 7 to nearly 7 million by March 28. Those three weeks marked the fastest job loss in U.S. history.

A year later, on March 10, 2021, Texas Governor Greg Abbott let Texas businesses reopen at 100% capacity, even indoors, as 16% of Texans had been vaccinated and one third of Texans were eligible for the vaccine, according to the Texas Tribune. Two weeks later, Abbott announced that all adults in Texas will be eligible to receive the vaccine on Mar. 29. For business owners and their employees, that’s where the questions start.

“I’m excited to get more hours and we think there will be more dining inside,” said Olivia Dufner who works at a restaurant in Austin. “Our curbside pickup is great for customers, but I make most of the money from tips. The more customers we have inside, the more money I make,” said Dufner.

In the Fall 2020, The Texas Association of Businesses (TAB), the Texas Economic Development Council (TEDC) and USTommorow announced a joint project to understand the impacts of COVID-19 pandemic on local Texas industry and workforce. The report shows that remote work increased for many businesses pre and post-COVID, from 35-60%. However, six in 10 businesses said they did not anticipate the work from home trend to be permanent. For some Texas businesses, vaccine requirements may not be an issue. But, with both the healthcare landscape and economy eyeing the healthiest forecast in a year, the stage is set for a new malady: The tension between some Texans who desperately need, and want, to work and their deeply held skepticism about the COVID-19 vaccines.

In Oct. 2020, Kim Rifenburg, a Pflugerville resident, said she was very hesitant to get the vaccine before it was officially approved. She has Cystic fibrosis (CF), a disease affecting the lungs. The Cystic Fibrosis Foundation says this disease is a high-risk medical condition, which makes those with CF at higher risk of serious complications should they contract Covid.

Now that the vaccine is available to all Texas adults, Rifenburg talked with her doctor in February. Her doctor advised her not to get the vaccine. The concern is that possible side effects from the vaccine could cause serious problems.

According to the CDC, more than 126 million doses of the three COVID-19 vaccines have been administered in the U.S. from December 14, 2020 through March 22, 2021. Some people have no side effects. Others report common side effects similar to those of COVID-19: chills, muscle pain, fever and other effects. In rare cases, severe allergic reactions have occurred.

Rifenburg has been working from home since the pandemic started, but has recently learned her employer is planning to ask employees to come back to the office. She hopes her employer won’t require the vaccine when she is asked to return to work.

“I might have to quit,” says Rifenburg. “I hope they [my employer] won’t make me get the vaccine. My doctor says it’s too dangerous for me.”

The law allows individuals to refuse the vaccine. But it also inoculates employers from having to keep them on the payroll… somewhat.  The ADA says that the employer must consider a reasonable accommodation for an employee who is unable to receive the vaccine because of a disability. The employer would have to prove that an unvaccinated employee would pose a “direct threat” or “significant risk of substantial harm to the health and safety of the individual.”  The employer would also have to prove that an employee working from home, for example, would not be a reasonable accommodation and that the vaccination serves a business need. Rifenburg doesn’t think she should have to go back to the office at all.

“I have a phone job that I can do from home, and I’m good at it,” said Rifenburg. “My boss told me that I’m actually performing better now than when I was in the office.”

Bottom line: ADA says that Rifenburg’s employer must consider her reasonable accommodation request to work from home and prove why it cannot be met. In fact, there’s already a lawsuit challenging mandatory COVID-19 vaccine employer requirement.

A New Mexico detention worker filed a federal lawsuit challenging the right of his employer, Dona Ana Detention Center (DADC) to require him, a first responder, to receive the vaccination. First responders were among the first to be eligible to receive the vaccine. The lawsuit focuses on the fact that this current COVID-19 vaccine is FDA approved under the Emergency Use Authorization (EUA), rather than the through the FDA’s usual and more time-consuming process. According to his complaint, DADC is requiring him to be vaccinated in order to keep his job.

Fisher Phillips, a law firm specializing in employment law, conducted an employer survey in Jan. 2021. Survey respondents say that only 9% are considering mandating the vaccine. In fact, 78% of employers are encouraging the vaccine and some report possibly offering incentives to take the vaccine. That’s good news for people who don’t want the vaccine.

“I just want to have a choice [to take the vaccine],” said Rifenburg. “The vaccine isn’t worth the risk.”

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