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Wednesday, December 23, 2020

Can Employers Require Employees to Get the COVID-19 Vaccine?

Almost since the COVID-19 pandemic began, the question of whether or not a vaccination would be mandatory has been a regular part of public discourse.  On December 11, 2020, the Commonwealth of Massachusetts started distributing the Pfizer-BioNTech COVID-19 Vaccine and has pushed the conversation to the forefront.  Many people have expressed hesitation or outright disapproval of taking any vaccination for COVID-19.  However, it is likely that an employer will be able to require his or her employees to receive the vaccination as a condition of continued employment.

The precedent in the Commonwealth of Massachusetts was established in 1905.  In 1905, Massachusetts law granted the right to enforce mandatory, free vaccinations to the board of health of individual cities and towns for adults over the age of twenty-one if the municipality determined that a mandatory vaccination was necessary for the public health or safety of the community.  In 1902, the Board of Health of the Cambridge adopted a regulation ordering the vaccination or re-vaccination of all its inhabitants to combat an onslaught of smallpox.  Cambridge Pastor Henning Jacobson had a negative prior experience with a vaccination and believed that his family had a hereditary condition that made the smallpox vaccine particularly dangerous.  He refused to get vaccinated and his case ultimately reached the Supreme Court of the United States.  Jacobson argued that subjecting him to a fine or imprisonment for refusing vaccination was an invasion of his liberty and that the law was "unreasonable, arbitrary and oppressive."

The Supreme Court found that the Massachusetts law did not violate the Fourteenth Amendment holding that "in every well ordered society charged with the duty of conserving the safety of its members the rights of the individual in respect of his liberty may at times, under the pressure of great dangers, be subjected to such restraint, to be enforced by reasonable regulations, as the safety of the general public may demand" and that "[r]eal liberty for all could not exist under the operation of a principle which recognizes the right of each individual person to use his own [liberty], whether in respect of his person or his property, regardless of the injury that may be done to others."  The Supreme Court ruled that mandatory vaccinations are not arbitrary or oppressive so long as they do not "go so far beyond what was reasonably required for the safety of the public."  Specifically in the Jacobson matter, with smallpox being "prevalent and increasing in Cambridge," the regulation in question was "necessary in order to protect the public health and secure the public safety."

This ruling has continued to be utilized since 1905 including during the H1N1 crisis. The Jacobson decision has been a precedent case in justifying government face mask orders and stay-at-home orders throughout the entirety of the 2020 COVID-19 pandemic.

Connecting back to the question at the heart of this article, the Jacobson precedent is likely enough justification for an employer to require his or her employees to get the COVID-19 vaccination.  Failure to do so could be grounds for termination.  As with most things in the law, there are two important exceptions to know about.  First, is that it is within an individual's right to object to receiving the vaccination on the basis of the individual's religious beliefs.  That being said, the individual may be required to show that he or she actually practices in the religion that forbids vaccinations.  Second, if the individual has a valid medical reason not to obtain the vaccination, an employer will not likely be able to force him or her to get the vaccination.

If you have any questions about the COVID-19 vaccination and employment law, please feel free to contact the Law Offices of Samuel S. Reidy for a free consultation.

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