COVID-19 vaccinations are here. What if you don’t want to get one, but your employer says, “No shot, no job?” Is there a way that the business world and government can encourage taking the vaccination voluntarily as opposed to mandating it?
I put those questions to Southern California-based employment attorneys, Dan Klingenberger, Jay Rosenlieb, and Dr. Luis Vega, psychology professor at California State University, Bakersfield.
Dan - This is a huge question and the answer may depend on the type of employment. An employer in the health care industry may, for example, have greater rights and needs than an employer in the construction industry. If an employer requires employees being vaccinated, at present we see at least two ways this could be challenged:
1. By raising a religious accommodation issue. “For religious reasons I object to receiving the vaccine.” The employer would need to explore whether the employee has a “sincerely held religious belief” that would require an accommodation by the employer.
2. An employee may have medical concerns or a disability that causes the employer to want to avoid receiving the vaccine. The Americans with Disabilities Act (ADA) requires employers to follow certain steps to consider a reasonable accommodation upon request by a person with a disability.
However, an employer may have the right to require the vaccination if it could be shown that failing to get it would create an undue hardship on the employer or pose a direct threat to anyone working around that person. Additionally, this could be the basis to deny a request for accommodation.
Jay - History as shown that even prior to H1N1 disease, the EEOC has allowed mandatary vaccination programs. For example, mandatory flu vaccines in the health care sector are accepted as well as the obligatory hepatitis vaccination in the waste water treatment industry.
It is clear to me that employers can require the vaccination; the bigger question is, should they? To answer that question, they will need to take a look at their individual circumstances to determine the level of acceptable risk with respect to requiring employees receiving the vaccine.
For example, an employer who has not had significant cases of COVID-19 in their work place and are not in health care, food, industry, meat packing, or waste water may decide that it is not worth accepting a risk of an EEOC or ADA claim by requiring receipt of the vaccine. Some of those risks are that if the employee receives the vaccine and has a negative reaction, this could become a workers’ compensation claim.
Dan - Another risk employers face is that if they do not roll out their vaccination program effectively, OSHA or their state version of OSHA would move against them.
Employers should monitor whether their state, county and city has introduced their own vaccination programs.
Jay - Mandating the vaccine is a hot potato. I do not believe that employers should be required to have mandatory vaccination programs. See how much trouble we are having with requiring face masks? It would be the same thing, only ten times larger. A mandatory vaccine program opens the employer to bad media relations, negative social media comments and disruptions in the workplace.
What Should Employers Do Now?
Dan - Employers need to self-educate to be sure they are complying with government requirements and regulations related to policies that address COVID-19 preparedness. This will vary from state to state.
All employers should continue their current prevention programs – masks, social distancing, checking temperatures and in addition to that, it makes sense for company owners and managers to consider sponsoring an on-site voluntary clinic and be the first in line to roll up their sleeves and get the vaccine.
This will probably be the very best form of encouragement and much better than ordering their employees to get the shot.
A Psychologist on How to Encourage Vaccination
Dr. Luis Vega is a professor of psychology at California State University, in Bakersfield, whose professional interests include methods of persuasion. Some months ago, I wrote “The Psychology of Being Scammed” based on my interview with Dr. Vega. With so many scams attacking us daily, if you have not yet read it, may I suggest that you Google “Dennis Beaver Luis Vega Scammed.”
If you have ever wondered how even well educated, professional people can get scammed, Vega explains the mechanics. Do you have parents or family members who are “trusting souls?” Please encourage them to read the article. I hear almost daily from elderly people who got scammed, and if their kids or close friends were on top of what Mom or Dad was doing, the outcomes would be so different.
I asked Dr. Vega why anyone would refuse a vaccine, knowing that millions have died from COVID-19.”
His answer took us on a brief detour to the world of literature:
“Shakespeare describes how two young lovers -- told they were not free to love each other -- chose to exercise the ultimate free choice, and took their own lives.
“The sense of losing one’s freedom evokes a strong need to regain it that psychologists call the Romeo-Juliet Effect. Mandates for COVID-19 vaccination could encourage some people to oppose vaccination because it gives them the perception of losing their freedom of choice at the cost of a fatalistic, Shakespearian outcome, where even dying preserves a sense of one's freedom, irrational as it might sound.
“Ideally, government and the business world will encourage everyone to realize they have a choice of action, and the best is accepting the COVID-19 vaccine, which for many will be a matter of life or death. That means placing the focus on what we stand to lose by not taking the vaccine.
How Can We Deal with People’s Fear of the Vaccine?
“Dennis, let me draw a parallel to a common reaction by people -- paralyzed by fear -- and unable to save themselves in aircraft accidents, cruise ship disasters and fires.
“To prevent inaction and paralysis, we must tell people what to do, and provide a roadmap to overcoming fear. The thought of dying from COVID-19 is frightening to most of us, yet, even with a disease-preventing vaccine, some inaction — rejection by people who march to the beat of a different drummer — must be expected.
“We have a good chance of reversing it by providing the solution, which is vaccination. The more we explain how vaccinations work, the better.
“And when people who we look up to take the vaccine, we will see the “Monkey-See-Monkey- Do” effect.
I asked him to explain the mechanics - how the “Monkey-See-Monkey-Do” effect works?
“It is important to see other people who are like ourselves getting the vaccine. When we find business and government in the same group — the same boat — all getting the vaccine, this avoids a feeling of "us-them separation,” he notes.
Of course, there are some people — for medical or other personal reasons — who will not want to take the vaccine. Those who decline to take it for religious or other reasons may find these difficult positions to maintain, and that is something the legal system will address. But what about someone who just says, “I do not want to take the shot and don’t care what anyone thinks. This is my right!”
“Of course, some people will opt not to get the vaccine,” Vega observes, “and this reveals the ‘Us-them Separation Through Differences, ‘Us’ taking the vaccine as the normal thing, ‘them’ not taking it, as reckless, outside the norms.”
Professor Vega concluded our discussion in a way that would have made old Bill Shakespeare proud:
“As humans we strive for a sense of belonging; feeling different marginalizes us, and we do not like that, not at all. The “Monkey-See-Monkey-Do” effect reduces differences, and those who do not follow will feel the pressure to conform, or be marginalized.”
Dennis Beaver Practices law in Bakersfield and welcomes comments and questions from readers, which may be faxed to (661) 323-7993, or e-mailed to Lagombeaver1@gmail.com. And be sure to visit dennisbeaver.com.
Catch the latest in Opinion
Get opinion pieces, letters and editorials sent directly to your inbox weekly!