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Is It Legal For Employers To Mandate COVID-19 Vaccinations?

RACHEL MARTIN, HOST:

Vaccinations are on the rise in the U.S., and some employers are thinking about how and when to bring people back to work. But what about those employees who won't get the vaccine? Can they be forced to do so? NPR's Yuki Noguchi reports.

YUKI NOGUCHI, BYLINE: Allies for Health and Wellbeing is an HIV clinic in Pittsburgh. Many of its patients have weakened immune systems, so the pandemic has been a dangerous time. Then the COVID vaccine became available, and with it, says human resources director Mark Marsen, the question of whether to require vaccination among its staff of 50. The clinic decided not to go that far.

MARK MARSEN: We currently strongly recommend that all of our staff be vaccinated.

NOGUCHI: But that could shift. Marsen says Allies' board of directors is still considering an out-and-out vaccine requirement. He says the clinic is searching for the right balance between managing safety and fairness to workers.

MARSEN: The two issues - public health and organizational culture.

NOGUCHI: On one hand, there's the risk of infection. On the other, the clinic has moved away from an authoritarian workplace culture in recent years. It emphasizes listening to and accommodating staff.

MARSEN: To say thou shalt vaccinate seemed very contrary to the messages that we were building.

NOGUCHI: Meanwhile, Marsen says, a larger clinic nearby took a different approach.

MARSEN: They did mandate that all of their employees have a COVID vaccination. And I did ask the head of the organization whether anybody had to be fired. And he said two people were.

NOGUCHI: Many experts agree it's legal for employers to mandate vaccination, especially in high-risk environments like factories or hospitals. But employers are still wrestling with whether to do so. By law, employers have obligations to keep the workplace safe and to not discriminate against workers. But when it comes to mandating new COVID vaccines, what does that mean in practice? What if your job cannot be done from home? Or, says Marsen, what if you mandate vaccines?

MARSEN: And then somebody has an incredibly bad reaction, who's liable? It's a legal minefield.

NOGUCHI: Lisa Frydenlund is an adviser at the Society for Human Resource Management, which represents a range of companies, small and large. A national survey by her group in February found 60% of employers won't require vaccination. Another 35% are undecided. But a third of workers do want mandates. Frydenlund says some workplaces are promoting the shots by granting special privileges to vaccinated workers, like allowing them to go maskless at work.

LISA FRYDENLUND: What an employer could possibly be facing then is potential claims of discrimination because what if somebody can't get a vaccine because of a medical condition or a religious belief?

NOGUCHI: Meanwhile, she says, state lawmakers are trying to clear up these questions.

FRYDENLUND: All of our 50 states have legislation to determine how far an employer can go as far as penalizing, whether that's termination or even disciplinary action, even applicants as well. So we'll see a lot of that in the future.

NOGUCHI: But enforcing mandates is tricky. Laura Boudreau is an economics professor at Columbia University. She cites the example of an employer in a region where skepticism about vaccines run high.

LAURA BOUDREAU: If 20% of their workforce says they're not going to get vaccinated even if it's mandated, could they respond to losing up to 20% of the workforce?

NOGUCHI: Or what if a top executive doesn't want to comply? Is the company willing to enforce its policy equally regardless of rank? And a mandate may make some angry. Plenty of others won't feel safe without one. Edgar Ndjatou is executive director at Workplace Fairness, a worker advocacy group.

EDGAR NDJATOU: You're going to have people who are going to have to make some really tough decisions regarding their employment.

NOGUCHI: Ultimately, he says, many workers will have to navigate these questions for themselves. Yuki Noguchi, NPR News.

(SOUNDBITE OF ENEMIES' "FOR ONE NIGHT ONLY") Transcript provided by NPR, Copyright NPR.

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