- September 21, 2021
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For employers, the legal issues swirling around vaccinations against the coronavirus have taken a hard turn recently, with President Joe Biden announcing new safety regulations on Sept. 9 mandating that all American businesses with 100 workers or more require either inoculations or proof of negative tests. The action came as a growing number of big companies—ranging from Disney and United Airlines to Goldman Sachs and CVS Health—had already enacted their own mandates.
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Plenty of small and midsize private firms around Chicago haven’t jumped on board yet with such requirements. Many are seeking out advice from local lawyers like Poonam Lakhani, of the Prinz law firm in the Loop, who has been studying COVID legal issues closely all year. Lakhani, 38, is an adviser to businesses of all sizes, down to hair salons with as few as 10 employees. An edited interview follows.
Crain’s: Before children can enter public school for the first time, it’s been said that they must show proof of vaccination against polio and eight or nine other diseases. Yet you rarely if ever hear about any parent challenging such requirements. But along comes COVID and people suddenly are fighting mandates.
Lakhani: The parents who don’t want to get their kids vaccinated often end up home schooling them or finding alternative ways to educate them. But the COVID vaccines have indeed been different, with lots of pushback and conspiracy theories that aren’t based on any established science. For many who object, it hasn’t been about religion or medical issues—people just don’t want to get it. People aren’t always rational.
Crain’s: Early on the chief objection from the vaccine hesitant was that the Moderna, Pfizer and Johnson & Johnson vaccines had only emergency approval from the Food & Drug Administration. On Aug. 23, the FDA went beyond that and gave Pfizer full approval, with the promise that the other two would follow soon. But that doesn’t seem to have convinced the hesitant objectors.
Lakhani: Yes, at the beginning the vaccines did not have full FDA authorization, and under those circumstances many companies were not willing to issue inoculation mandates. They resorted to the carrot approach instead, awarding bonuses in some cases to push employees to get their shots.
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The carrot approach in most places hasn’t worked. And the full approval of Pfizer has not resulted in a spike in inoculation, which tells you that the objections probably weren’t sincere in the first place. But now that full approval is in place, companies do feel much more confident in issuing mandates. Employers were fully within their rights to demand vaccinations of their workers early on and they are fully within their rights now. Court cases in Texas and Indiana have affirmed that right recently.
Crain’s: If an employer elects not to issue a mandate and a worker gets infected from a coworker who has not gotten a shot, it would seem the employer faces serious legal liability.
Lakhani: All employers have an obligation to maintain a safe working environment. But this is a hard choice: Various surveys have shown that equal numbers of employees want mandates as those who want no mandates. No matter what choice a company makes, it’s likely that some part of the workforce will be upset and even alienated. The challenge is proving that somebody actually got COVID at work. To prove that, you usually have to look for clusters where multiple people are getting sick and the disease is spreading. That’s when the legal liability rises for the employer.
Crain’s: Some businesses are now requiring customers show proof of vaccination before they get service. Is that legal?
Lakhani: It’s legal, yes. The protection of your business doesn’t extend just to your own workers. You don’t want to be known as the place people got sick. When mask mandates were being lifted and unvaccinated people weren’t masking up even when they were supposed to, it became clear to me that the honor system could not be depended on. I’m the parent of young children who aren’t eligible for shots yet and this is very concerning to me when I have them out in public places.
Crain’s: Does the growing list of big American companies issuing mandates give cover to smaller businesses that want to do the same?
Lakhani: The government has come up with so many pandemic updates that it’s hard for small companies to stay on top of this. I’m advising them to hire lawyers who understand the rules and then update their employee handbooks with new policies drafted to cover COVID and exemptions that are allowed.
Crain’s: The exemptions could be a real headache. What’s to stop new churches being formed to give people a religious excuse?
Lakhani: I’m already anticipating this. I’ve seen some churches advertise, “Come join us and we’ll give you a letter that allows you to refuse vaccinations.” Employers do have the right to ask employees in such cases to articulate how sincere their religious belief is. And more and more conservative church leaders lately have been rising up to endorse vaccinations, so workers can only get so much relief on the religious front.
Lakhani: There are also medical conditions to consider. Some people are claiming they are allergic to certain ingredients in, say, the Pfizer solution. But increasingly we can prove that OK, those problematical ingredients are not being used in the J&J. So medical exemptions ought to be rare.
Crain’s: Will booster shots eventually be mandated?
Lakhani: That’s the next question coming through. It’s on my top of mind. So far, I think the same rules and analyses on basic vaccines will also apply to boosters.
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