Although employees can be required to take a test as a precondition of their returning to work, according to trial attorney Misty Marris, "there is no world where there is a COVID-19 mandatory vaccination policy that doesn't have exceptions to it."
Marris, who deals heavily in employment law, is the co-managing partner of the New York office of Gordon Rees Scully Mansukhani LLP.
As the U.S. waits for the COVID-19 vaccines from Pfizer/BioNTech, as well as Moderna, to get emergency use authorization from the Food and Drug Administration, employers have to be ready to set up a framework for how employees will be allowed to come back safely.
For both public and private employers this may mean encouraging employees to get vaccinated or implementing mandatory vaccination programs.
The Emergency Operations Center (EOC), which has issued guidance to employers throughout the pandemic, says the virus meets the standard of a "direct threat."
Since the virus is deemed a direct threat, employers have the ability to implement health checks in the workplace that would not normally be allowed under federal law in pre-pandemic times, according to Marris. This means employers have the ability to take someone's temperature before they come in or tell someone that they need to leave because they are exhibiting symptoms.
"While there is nothing that says it's illegal" for an employer to have mandatory vaccination program, that doesn't mean it isn't a thorny, thorny road."
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