Tuesday, July 20, 2021

Llpoh: Hints That Employers May Be Able to Require Vaccinations


Can employers make COVID-19 vaccination mandatory?

A judge has just ruled that universities can require students be vaccinated. In this case the judge was ruling on a lawsuit brought by some Indiana University students. He ruled that the Constitution does not guarantee the right to attend a university. He said that students could choose to attend another school without such a requirement, or could choose not to attend at all. But he was clear that no Constitutional right to attend university exists. As a matter of interest, he was a Trump appointee.


I have opined previously that I believe employers will be able to mandate vaccines, and I further stated that there are legal reasons which may make it prudent that they do so. Laws and regulations may change on this going forward.

My reasoning is as follows:

Laws require an employer keep a safe workplace. If an employer allows unvaccinated employees in, and they spread the virus, and someone is injured and/or dies, the employer is almost automatically likely to be deemed guilty for failing to keep a safe workplace. I would not like to be in that employer’s shoes if that happens. As a business owner, I hated risk, and did almost everything possible to minimize it. Balancing risk versus reward was my most important job.

So, given what a believe is a real risk to the employer if it allows unvaccinated employees, the question becomes, can an employer mandate employees be vaccinated? I suggest the likely answer to that is yes, because:

1) there is no Constitutional right to employment. As above re universities, the employee can go elsewhere.
2) at will employment exists most everywhere, and requiring vaccination does not seem to be in violation of the at will exceptions, to my knowledge.
3) in my experience, courts are hesitant to involve themselves in situations where the employer claims there actions are to ensure a safe workplace. Courts do not have expertise to overrule employers in these matters, and they also do not like injecting themselves in the running of business.
4) employers have broad authority to mandate workplace safety process and procedure. They are rarely overridden in this when establishing requirements, generally only when failing to to do so.

Each employer will have to evaluate their risks. Many will unable to survive an exodus of employees, which will have a heavy weighting in their decisions. Others, especially owners of small businesses, may have great appetite for risk. Some older business owners may well not take any such risk, as they could not have time to recover their loss. Some will decide that the risk of losing employees and the costs thereof may be bearable but a catastrophic claim for a workplace death would not, and treat it like insurance costs: pay a smaller sum to insure against a minuscule chance of a catastrophic claim.

It will be interesting to see which way big business goes on this. The large, left leaning woke businesses would seem to be likely candidates to mandate the so called vaccines.

But based on what we have seen to date re the university ruling, which will likely be appealed, I expect that employers will legally be able to mandate their employees be vaccinated.