Mandatory Vaccines and the Return to Office: What You Need to Know

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Getting back to work isn’t as easy as a lot of companies had hoped.

The surge of the Delta variant of COVID-19 has stalled the return-to-office plans of some companies. The CDC’s revised guidelines surrounding mask wearing have created all sorts of confusion, but the FDA did grant full approval to the Pfizer-BioNTech vaccine this morning. Many workers are concerned they’ll be working near or alongside people who haven’t been vaccinated.

It’s an area that’s still in constant motion, as companies adjust mandatory back-to-work dates and the virus spreads, but here’s where things stand now.

Can my employer require me to get vaccinated?

For the most part, yes. Private companies and government agencies can mandate vaccinations as a condition of employment. People with a disability or strongly held religious believe might be entitled to a “reasonable accommodation,” which could range from wearing a face mask at work and social distancing to working a modified shift or having regular COVID-19 testing. Those who don’t meet those conditions don’t have a lot of wiggle room.

The Justice Department has already addressed the issue of the shots being only approved for emergency use, saying that there’s nothing stopping companies from insisting of vaccination as “a condition of employment.” The mandate rules also apply to school districts and universities.

Several companies are already requiring employees and workers to show proof of vaccination, including Google, Facebook and Netflix.

Can retailers require proof of vaccination from customers?

They can in most cases. Despite some social media posts arguing that the Fourth Amendment prevents businesses from asking for proof of vaccination, legal experts say there’s nothing that stops them from doing so. (The Amendment, which focuses on “unreasonable searches and seizures” only applies to those by the government.)

Some states, though, are trying to circumvent that. Florida Governor Ron DeSantis in April issued an executive order that barred companies from requiring customers show proof of vaccination.

Is it safe to go back into an office to work?

The answer to that largely depends on your workplace and your safety practices. It’s worth asking if your employer has reviewed and/or improved the airflow in the building. If so, and if your office requires vaccinations and mask wearing, you’re about as safe as you can be, short of isolation. It all comes down to your risk tolerance, though. If you’re immunocompromised and not vaccinated (or haven’t received a third jab yet), the safety factor is different than your coworkers.

Do I have a right to continue to work from home?

A right? No. But your company might be open to it, depending on where you work and who you work for. Some employees will be able to negotiate the right to telecommute or work from home a certain number of days per week, but there’s nothing legally they can do to stay there and still get paid.

You do, however, have the right to demand a safe work environment – and if your employer is not taking adequate steps to ensure that, you can file a claim with OSHA. (It is illegal for an employer to fire, demote, transfer or otherwise retaliate against a worker who complains to OSHA and uses their legal rights.) You also might be entitled to leave under the federal Families First Coronavirus Response Act (FFCRA) or other state or local leave laws.

Can the U.S. government require vaccination for Covid-19? What about states?

The government can’t force you as a citizen to get one at this point, but it can require government employees to get jabbed (and it has). And there is existing case law that could potentially allow it to expand that mandate. In 1905, the Supreme Court ruled “it is within the police power of a State to enact a compulsory vaccination law”. (It upheld that ruling in 1922.) Opponents have focused their arguments by noting the current vaccines were authorized under the FDA’s Emergency Use Authorization (EUA) process and are not yet approved as a full Biologics License Application (BLA). That could change soon, though, as the FDA moves the EUA classification to BLA.

That said, the federal government has never required nationwide vaccinations and is highly unlikely to attempt that. There’s a slightly higher chance that city and state mandates could come, though those would certainly face legal challenges as well.

The views and opinions expressed herein are the views and opinions of the author and do not necessarily reflect those of Nasdaq, Inc.

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Chris Morris

Chris Morris is a veteran journalist with more than 30 years of experience, more than half of which were spent with some of the Internet’s biggest sites, including CNNMoney.com, where he was Director of Content Development, and Yahoo! Finance, where he was managing editor. Today, he writes for dozens of national outlets including Digital Trends, Fortune, and CNBC.com.

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