MINNEAPOLIS (WCCO) — Health leaders are encouraging Minnesotans to get the COVID-19 vaccine when becomes available.
It won’t be mandatory, but can institutions or places require people to get it?
According to employment law attorney Zaylore Stout, there are no employment laws on the books that specifically address this issue, but employment attorneys can point to analogous situations, like flu shots.
“Anyone who speaks to a lawyer knows that answer is always, it depends,” Stout said.
He said employers will have to consider the type of industry and employee. Is it people-facing or work from home? Is it public sector? Does it meet the business necessity?
He also believes upcoming guidance from the U.S. Equal Employment Opportunity Commission will offer more clarity to businesses as the vaccination process moves forward.
In the meantime, Stout points out any mandatory employer vaccination policy must have two exemptions: one for “strongly held” religious beliefs, and another for medical reasons. In the medical case, he said the employee won’t be able to make that determination, but rather a medical provider.
“There are some legal hurdles to meet, but it’s absolutely doable,” Stout said. “This is an area of the law that’s been changing this year. Normally as employment attorneys, we have easy answers as it relates to these things, but this has been a moving target.”
Outside of employers, where else could vaccines be a requirement? WCCO spoke with Timothy Johnson, a professor of politics and law at the University of Minnesota.
“I think there are two other groups. The first would be the government,” Johnson said. “The second would be places where you might want to go. Think airlines.”
Johnson points out airlines already require people wear masks on planes. A statement from a spokesman from Airlines for America, the trade association for U.S. airlines, said in part, “We strongly urge the federal government and ICAO to establish a common set of standards for ‘health passport’ solutions in order to ensure interoperability, accuracy and consumer privacy.”
On Dec. 3, Delta CEO Ed Bastian was asked about airlines requiring passengers to be vaccinated. He told NBC’s Today Show, “For international travel, it will become a requirement whether the airline does it or some international authorities do it.”
Johnson said concert or sporting event venues, where lots of people gather, might also be places that could legally consider vaccine mandates.
“Because it’s your choice, it’s not your constitutional right to go to a Vikings game or to a concert at First Avenue,” he said.
When asked about vaccine mandates on Tuesday, the Minnesota Vikings and Xcel Energy Center both said the topic hasn’t been discussed for their venues.
When it comes to government requiring mandates, Johnson said there is precedent that dates back to the smallpox vaccine in 1905. It was a case in Massachusetts that went all the way to the U.S. Supreme Court.
“The court ruled in favor of the government that vaccines absolutely can be mandated,” Johnson said.
He pointed out the same exemptions applied to businesses would apply to the government. He also said any mandates would likely not come from the federal government, but rather the states.
According to a spokesman with the Minnesota Department of Health, the state cannot require mandatory vaccination under the emergency use authorization (EUA) and it has not been considered.
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