With the recent FDA approval of the Pfizer COVID-19 vaccine, more Missouri employers are considering whether to require their staff members to get vaccinated.
At the very least, employers should have a policy in place, according to attorneys who lectured at a remote webinar called ‘Is it time to require vaccination?’ hosted by the Missouri Chamber of Commerce and Industry last week.
“It's important to have a policy so that people understand what the rules are and make sure it's really flexible because right now, being vaccinated means one or two shots, depending on which vaccine you got, but, there may be a third shot or a booster for some of us,” said Brian Woolley, attorney, and partner with Lathrop GPM law firm. “You’ve got to be flexible enough to take into consideration all the changes that might be coming down the road.”
While a hard vaccination policy would mean an employee is terminated if they remain unvaccinated, a soft mandate can vary from company to company.
"If you're unvaccinated, you may have to wear a mask and do some other protective things," Woolley told the webinar participants. "You may have to report your temperature every day and report frequent negative tests. Every week, you may have to get another COVID test to show that you're still negative. That's a soft mandate."
About 83% of businesses that are members of the Missouri Chamber are encouraging their employees to get the COVID-19 vaccine but very few are actually requiring it, according to Missouri Chamber data.
“It makes this topic of vaccination especially acute and appropriate for what we're facing today,” said Brendan Cossette, chief operating officer of the Missouri Chamber of Commerce and Industry.
Although the Missouri legislature approved House Bill (HB) 271 prohibiting vaccine passports, the law doesn’t extend to private business and, as a result, there isn’t much of a legal barrier preventing an employer who wants to mandate the COVID vaccine, according to Woolley.
“The headline may have given the impression that it completely banned vaccine passports but, if you look at the law, it really is much more limited than that,” he said. “The law that was passed only applies to counties, cities, towns, or villages receiving public funds and it only applies to transportation systems and other public services.”
Under HB 271, only a municipality or county in Missouri is prohibited from requiring a vaccine passport in order to ride on a city bus, for example.
“That doesn't have anything to do with an employer or a private employer requiring their own employees to be vaccinated,” Wolley said. “So, the vaccine passport statute doesn't have any impact and I don't think the governor is going to stand in the way of employers who want to mandate vaccine passports.”
Some 62% of employees think their employers should require workers to get a COVID vaccine before they are permitted to re-enter the workforce, according to a recent study.
“You can certainly ask people if they have been vaccinated, there's nothing to prohibit you from doing that, which may tell you a lot,” said Rosalee McNamara, attorney, and partner with Lathrop GPM law firm. “If you find that a significant percent of your workforce has been vaccinated, then mandating it may not be such a big step.”
McNamara added that employees who have an adverse reaction as a result of forced vaccination by their employer may find recourse under a workers' compensation claim.
"We have seen cases where it certainly has been covered but that could depend to some extent on the specifics and causation will be an issue," she said. "Where did someone get COVID and did someone get it in the workplace? That's going to be determined by your work comp carrier."