Brian: Brian Lehrer on WNYC .Last Thursday, United Airlines CEO, Scott Kirby told workers in the meeting that the airline may make the COVID-19 vaccine mandatory for employees, according to a transcript reviewed by Reuters. Workers in the travel and transportation industry interact with many people every day, obviously as do healthcare workers and restaurant employees, for example. What about also small offices or postal workers who would have mastered contactless delivery, freelancers? As workers and employers who have had a choice slowly start thinking about returning to their workplaces, can employers legally mandate their employees to get a COVID 19 vaccine, perhaps with certain medical exemptions? If it's legal, is that the right thing to do? Anyway, let's explore the issue. Joining me now to break it down is Dorit Reiss, law professor at the University of California Hastings College of the Law who specializes in vaccine law policy. Dorit Reiss, welcome to WNYC. Professor, nice to have you.

Dorit Reiss: Thank you for having me.

Brian: I didn't know vaccine law was an area of specialty, so there's a rich field here?

Dorit Reiss: To my surprise yes, it was a little bit unplanned.

Brian: For example, in 2009, during the spread of the H1N1 virus, as I understand it, the Equal Employment Opportunity Commission of the Federal Government issued guidance that said US employers could require employees to be vaccinated. Do I have that right? Has that guidance been updated and released to reflect COVID-19?

Dorit Reiss: Yes, to both. Employers were already starting to require vaccines in some contexts before the guidance and before the H1N1 pandemic as early, at least as 2005 but the guidance, it was the first time they addressed it in the context of a pandemic. Yes, they've recently updated it to address COVID-19 vaccines.

Brian: In what respect? What is the guidance right now?

Dorit Reiss: The starting point is that employers can say health and safety both for the workplace and the vaccine requirement for the under that heading but the EEOC is providing guidance on where the employers have to provide the exceptions under federal, under discrimination laws. There's two basic laws that the EEOC is focusing on. One is the American Disabilities Act, which as you suggested requires medical exemptions in some contexts. The other is the Civil Rights Act of 1964, which for this purpose protects employees with religious objections to a work call.

Brian: Religious objections. Once upon a time when there was a military draft in this country, there was the status conscientious objector, which at first had to be based on a particular religion that you were in that held that belief. Then that was gradually changed so that anybody who held a personal objection to military service could get conscientious objector status. How stringent are the requirements to prove a religious exemption to a vaccine requirement?

Dorit Reiss: There are three parts to it. The first part is what you're referring to, which is what's a sincere religious belief? The [unintelligible 00:03:48] says that it's not as narrow as you have to show that you're part of organized religion that opposes a vaccine but it's not quite as broad as any a personal objection. You have to show that your belief is part of a set of beliefs about fundamental matters. You can't latch it to one clause in a scripture. You have to give evidence that its part of a general, a worldview about fundamental matters. The other side of that is that it's very hard to police because it really is about personal belief and employers can easily make mistakes, such as trying to require a letter from a clergy.

Brian: Listeners, any employers out there listening right now who have started thinking about whether or not you'll make a COVID-19 vaccine mandatory for your employees, tweet @BrianLehrer, or give us a call 646-435-7280, 646-435-7280. Employers, are you thinking about this? Employees, how would you react to a mandatory vaccine policy for your workplace? Would it make you feel more comfortable, make you feel oppressed? Who wants to react or ask a question of law professor Dorit Reiss who's an expert in this field at the legal level? 646-435-7280. As your calls are coming in, let's use the flu vaccine as an example. According to the Kaiser Family Foundation, as I've read it, only 13 States require hospitals or long-term care facilities to document whether employees have received an annual flu vaccine and report that information to the state. In some of those states, healthcare workers can refuse the annual flu vaccine but are then required to wear a mask when handling patients directly. I think New York is one of those states. Is that a model for what we might see with coronavirus vaccine requirements?

Dorit Reiss: It's one model. Remember that state action is only one possible action here. A private employer doesn't have to wait for the states to require it. A private employer can set work rules for themselves without any state actions unless the state prohibits it. Only one state prohibits employers from requiring vaccines and that's Oregon.

Brian: What do you think of this idea for this pandemic?

Dorit Reiss: I think it's a mixed bag. One of the issues is that these vaccines are right now authorized under an emergency use authorization rather than a full approval. Although they went through what's called an E-way plus, a more demanding process of evidence than the usual emergency use authorization. They're still in a relatively early stage of clinical trial, even though the data is very promising. There's a question, how justified is it to require a vaccine under an E-way? On the other hand, is the fact that the data right now already showed us that the benefits of the vaccine far outweigh the risks in the sense that COVID-19 is substantially more dangerous than the vaccines from what we've seen already.

It does at least grant to say, it makes sense to require the vaccine, especially for some workplaces. For example, if you're in a nursing home, the staff are the ones that go in and out of the community and the staff interacts with what's essentially a captive population that's at high risk. It makes sense to say that this staff should really, should be vaccinated because they're interacting with people with high risk. If they don't do it willingly, a mandate is probably justified. Not all other contexts are as strong.

Brian: It depends on the context. How about, for example, somebody wrote this question, that for nannies and other home healthcare workers, nannies would be with little kids, home healthcare workers are usually for elderly people, who'd be a particular risk.

Dorit Reiss: If you're having someone in your home, you're not even subject to the federal other discrimination law. Someone coming into your home, you have extensive leeway to require a vaccine. It probably makes sense to say my home, my rules, I can set who comes in and who doesn't. The other side of that is that often domestic workers are very vulnerable and requiring them to get a vaccine can [unintelligible 00:08:45] situations. First, they might not have access to the vaccine. We know that access is now an issue and it might be a barrier that many can't get over. Second, targeting a population that's already vulnerable raises questions of equity.

Brian: Margaret in Brooklyn, your own WNYC. Hi Margaret.

Margaret: Hey, I have a small business that teaches sports to children, and I'm wondering, can I only hire people who are vaccinated so that I could basically tell my customers that all my staff have received the vaccine?

Dorit Reiss: There's three parts to the answer. First, you've set your own workforce, and yes, you can require a vaccine from your employees. If you have more than 15 employees, you still have to comply with the Americans with Disability Act and the Civil Rights Act of 1964, which may require accommodating people with medical problems. Again, that prevent getting the vaccine or accommodating people with religious objection, though, it may not. The EEOC guidance is probably your best target for that. The other thing to remember is that there's legal uncertainty on whether you can mandate and vaccine under an EUA. While there's grounds to think that you can, for example, workplace have been mandating vaccines, have been mandating testing, and the tests are under the EUA, the language is not clear and there's no case whatsoever on this, because these are the first vaccines authorized broadly under an EUA. The answer is, you probably can, there may be exemptions that you have to give and there's legal uncertainty around what's the effect of the fact that this is a vaccine under the EUA.

Brian: Peter in Manhattan and you're on WNYC. Hi, Peter?

Peter: Hi. I just wanted to ask, my understanding is that the science indicates that the vaccine protects the person vaccinated but don't necessarily stop transmission. The idea of having a policy requiring employees to be vaccinated to stop the spread might not, I do believe that everyone should be vaccinated so that we have herd immunity but looking at [inaudible 00:11:15]

Brian: That's a very interesting question. Dorit, I know you're a lawyer, not a doctor but we have heard, I think this is a matter of uncertainty in the science at this point but it is considered possible that the vaccination will protect the individual who's vaccinated from getting sick from COVID but not from technically getting COVID and therefore being able to transmit it to others. Does that change the legal question about requiring vaccinations because if an employer is doing it on the basis that then you're going to be safe for the customers or your fellow workers, it might not actually do that?

Dorit Reiss: This is a great question. As you were saying, we have some uncertainty on that. The studies we currently have show us as you said that the vaccines protect the person getting them from the disease, but may not prevent transmission. It's not that we know that they don't prevent transmission, it's that we just don't have good data on that yet. My best reading is that experts think that at least reduce transmission but you're right that there's uncertainty. In the workplace, an employer can require employees to get the vaccines even on the basis of protecting the employee themself, in part because employers are going to be subject to a worker's compensation, if a worker has on the job injury, and that can include getting COVID-19 on the job. For the workplace, employers can still require vaccines on the basis but certainly stronger to impose such a requirement if you can show it prevents transmission.

Brian: Andrea in Washington Heights, you're on WNYC. Hi, Andrea.

Andrea: Hi. I was calling in because my father is in a nursing home, not in New York, in North Carolina. Many of the employees refused the vaccine. Subsequently, one of the staff members contracted COVID, and half of the residents and several of the staff members got COVID. There's a huge outbreak there now. I spoke to the regional vice president of this nursing home chain. He told me that he could not legally require his staff to get the vaccine just listening to this discussion, I hear that he could, in fact, require it. Washington State is the only state where he couldn't require the vaccine. My question is, would it be beneficial to offer some financial incentive for staff members to get the vaccine, assuming that perhaps people would quit if they were forced to get the vaccine, maybe for a number of social reasons, what are your thoughts on that?

Brian: Professor?

Dorit Reiss: First of all, I'm really sorry that your father was in such a tricky situation and it's really hard for everybody in the nursing home when you face a thing like that. As you said, I don't know what the situation there, but generally employers can require it. Yes, employers can use incentives. That's another thing to keep in mind. We're talking about mandates as if they were, vaccinate or fire, but you can have a different approach such as vaccinate and you'll get a discount on your health premium, or vaccinate or you'll get extra time off. The incentives are legitimate and potentially another way to get more people vaccinated.

Brian: Positive incentives. In the last 30 seconds, we've been talking about requirements, what about private lawsuits? I don't know if maybe in her father's case, theoretically, but Mitch McConnell has been trying to protect employers from COVID-related lawsuits as part of relief packages, but let's assume an outbreak can be linked to the workplace and an employer declined to require vaccinations can employee or a customer or somebody sue the business? We have 20 seconds.

Dorit Reiss: Employees would go through workers' compensation but the customer can bring a lawsuit. Whether that lawsuit will succeed will really depend on the facts of the case. Can you show the place that caused it and can you show that it was unreasonable not to require the vaccine.

Brian: Dorit Reiss, Law Professor at the University of California Hastings College of Law specializes in vaccine law policy. This may become a very prevalent conversation in our country as the vaccine further proves itself. Thank you very much for giving us a preview of what's probably to come.

Dorit Reiss: Thank you for having me.

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