Now that everyone in Colorado age 16 and older is eligible to get a coronavirus vaccine, appointments are as hard to get as courtside seats at the Nuggets.
But, as Gov. Jared Polis has acknowledged, that will soon change – when everyone who wants a vaccine has already gotten one. And then what? How far can governments, lawmakers, employers and businesses go to push vaccination rates even higher in order to reach herd immunity against the virus?
The Colorado Sun has compiled a list of answers to the most commonly asked questions about coronavirus vaccine mandates, passports and incentives.
Will the federal government mandate the coronavirus vaccine for everybody?
No one at the moment is pushing for a broad, national vaccination mandate.
“I don’t think it should be mandatory,” President Joe Biden said in December, prior to taking office. “I wouldn’t demand it be mandatory.”One key reason is that the vaccines have not yet received full approval from the Federal Food and Drug Administration. The three vaccines in use in the United States – ones made by Pfizer, Moderna and Johnson & Johnson – are all being administered under an “emergency use authorization,” also known as an EUA. It’s a way for urgently needed vaccines and drugs to get to the public while the full, longer authorization process takes place.
Federal law says that people given products approved under an EUA should be informed “of the option to accept or refuse administration of the product, of the consequences, if any, of refusing administration of the product.” This is why forms for receiving the coronavirus vaccine all require acknowledgment from recipients that the inoculation is voluntary.
Will people such as hospital workers be required to get the vaccine?
For the same reason the federal government can’t mandate vaccination for everybody right now, it can’t mandate vaccination for people who work in health care or other important industries.
In testimony before an FDA advisory committee in October, Dr. Amanda Cohn, an official with the federal Centers for Disease Control and Prevention, said federal law does not allow the government to mandate vaccines, even for workers in hospitals, when the vaccines only have approval through an EUA.
“Mandates have been shown to increase coverage in some settings, but the federal government would not be mandating use of these vaccines,” Cohn said.
Hospitals do have the ability to mandate vaccines that have been fully licensed.
“But in the setting of an EUA, patients and individuals will have the right to refuse the vaccine,” she said.
Hospitals in Colorado have been following this guidance when thinking about whether they can require their staff to get vaccinated.
When asked this question, SCL Health spokesman Greg Moss pointed to Cohn’s testimony that “vaccines are not allowed to be mandatory. So, early in this vaccination phase, individuals will have to be consented and they won’t be able to be mandatory.”
The same goes for other hospitals in Colorado.
“Even if you wanted to, you wouldn’t do that because it’s emergency use. So it’s really voluntary,” Lindy Garvin, the vice president of quality and patient safety for the HealthONE hospital system, said in December.
Dr. Heather Young, an infectious disease specialist with Denver Health and leader of an internal committee on infection protocols, said a lot of employees have been asking if the vaccine will become mandatory. The first response from Denver Health managers, Young said, is a “no” based on the FDA’s emergency authorization status.
While the coronavirus vaccines are effective and highly recommended, there’s just not enough long-term research yet for Denver Health to mandate it for employees. About 75% of Denver Health employees had taken the vaccine by the third week in March.
Is Colorado planning to require vaccinations?
No, say Polis and state health officials.
“There is no statewide vaccination mandate, and the state of Colorado is not currently pursuing any mandates,” Jessica Bralish, the communications director for the state Department of Public Health and Environment, wrote in an email.
The state also isn’t planning to require its 30,000-person workforce to get inoculated against COVID-19.
“The state has no plans to do that,” the Democratic governor added.
Additionally, lawmakers at the state Capitol are not discussing legislation that would require people to get inoculated against COVID-19.
Can employers require their workers to get vaccinated?
This is a legal gray area.
Plenty of legal experts believe that they can. The U.S. Equal Employment Opportunity Commission in December released guidance suggesting that employers can mandate coronavirus vaccination the same way they can already mandate, say, flu vaccination.
But the power to mandate, at most, is not absolute. There must be a job-related need for vaccination. And the mandates must contain exemptions for employees who have a medical condition that precludes vaccination and for employees who have sincerely held religious beliefs against vaccination.
The EEOC guidance, though, doesn’t touch the question of whether employers can require a vaccination that has received only emergency approval from the FDA. And this has led some legal observers to caution employers on rushing to mandate.
In an article written last month for the publication Hotel Executive, Denver-based attorney Christine Samsel, a shareholder with the firm Brownstein Hyatt Farber Schreck, said it will take time for the legal questions to be settled. In the meantime, an employer who fires someone for refusing to get vaccinated could find themselves on the receiving end of a lawsuit.
“At this juncture, given the uncertainty surrounding the legality of mandating EUA-status vaccines, plus the other issues raised by mandatory vaccines, the safer course of action for employers is to encourage employees to get the vaccine rather than mandating it,” Samsel wrote.
This appears to be what many employers plan to do.
In a February survey by the labor law firm Littler, 48% of companies polled said they would not require coronavirus vaccination, compared with only about 10% that said they had already required or were considering requiring vaccination for at least some workers. The remainder were undecided.
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