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Bridge Michigan
Michigan’s nonpartisan, nonprofit news source

Vaccine mandates increase among Michigan employers. What you need to know.

 COVID-19 vaccine bottle
Many Michigan businesses are taking a wait-and-see approach to vaccine mandates amid a tight labor market. (Bridge photo by John Russell)

Sept. 15: A Michigan doctor goes to Facebook over dying, unvaccinated COVID patients
Sept. 14: Republicans advance bills to bar Michigan school mask mandates
Sept. 13: Despite protests, 98% of Henry Ford Hospital workers get COVID vaccinations
Sept. 10: Biden vaccine mandate: What’s it mean for Michigan schools, those who refuse?

Michigan’s appetite for voluntary COVID vaccines may be dwindling, but businesses increasingly are requiring staffers to roll up their sleeves as a condition of employment.

It may seem intrusive to some, but several experts told Bridge Michigan they’re also within their rights.

“We live in a world of the at-will real employee,” said Nicholas Bagley, a constitutional law attorney and professor at the University of Michigan. “When your employer asks you to do something, it can. It has the right to do so. And you have the right to walk away from that relationship.”

 

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This week, a federal appeals court elsewhere gave significant reassurance that universities can mandate vaccines among students, too.

On Monday, the Seventh Circuit Court of Appeals sided with Indiana University after a group of students challenged the university’s vaccine mandate there.

Michigan State University, University of Michigan and Wayne State University each announced in the past week they will require students — as well as employees — this fall to be vaccinated. 

And while Michigan falls outside the court’s jurisdiction, the Indiana University ruling — from three judges appointed by Republican presidents  —  may dim the chances of challenging university mandates in Michigan.

In Indiana, the court decided that students “have a right to bodily integrity” but universities also have a right to set requirements for enrollment, including tuition, homework and vaccinations. 

“If conditions of higher education may include surrendering property and following instructions about what to read and write, it is hard to see a greater problem with medical conditions that help all students remain safe when learning,” the court wrote in its decision.

Still, there’s plenty of pushback from those who feel such mandates are a step too far.

Several states have passed such laws or are debating legislation to bar employers from requiring vaccinations. Legislation in Michigan to do so has not moved out of committee.

“Governmental dominance (is) destroying humanity and our way of life,” said state Rep. Steve Carra, R-Three Rivers, who is sponsoring one of the bills.

“We can’t hide from COVID-19 forever.. “At some point we need to live. It would be better to promote the general welfare, instead of imposing mandates and controls.”

Here’s what you need to know about the issue.

Who’s requiring the vaccine so far?

At least seven large Michigan health systems that employ tens of thousands of Michiganders now require vaccines of their employees, a movement led by the announcement in June of Detroit-based Henry Ford Health System and then Livonia-based Trinity Health. 

Among those that have followed are Beaumont Health and Spectrum Health, who have said they will require the vaccine, but only after it is fully approved by the U.S. Food and Drug Administration. (The vaccines now have emergency use authorization.)

The latest decisions follow a recommendation by the American Hospital Association and dozens of medical associations

Hospitals generally allow religious and medical exemptions to vaccines, and they must try to make accommodations when possible. 

Elsewhere around the globe, some governments are requiring the vaccines of health care workers. The Biden administration is mandating vaccines among its workers, as are some states including New York and North Carolina.

In recent days, the state’s three largest universities — representing more than 50,000 employees — also required vaccinations as a condition of employment.

Companies from Walmart and Walt Disney Co. to Google and Tyson Foods also are requiring at least some of their employees to get the shot.

Michigan Gov. Gretchen Whitmer, though, last week said she isn’t considering requiring the state’s 50,000 workers to receive vaccinations.

What about other Michigan businesses?

As with many employers nationwide, most Michigan businesses have been reluctant to add mandates.

“It's a tough labor market out there, and so I think that there's some apprehension” that a policy might drive away staff, said Brian Calley, president of the Small Business Association of Michigan.

“You also have demands from employees on both sides — those who prefer a vaccine mandate and other employees that oppose it.”

For now, many are adopting a wait-and-see approach. 

“The vast, vast majority of my team is vaccinated because we believe in science,” Mike Stack, owner of Applied Fitness Solutions in southeast Michigan, which has not required vaccines among staff.

Gym owner Mike Stack
Gym owner Mike Stack said he’s trusting employees to do what’s right for them when it comes to vaccines, but climbing case rates could push him to require shots. (Courtesy photo)

But things change fast, he said. The Delta variant and a continued increase in cases could push him to reconsider, weighing once again personal choices against safety in shared spaces against the growing understanding of the way COVID spreads.

“I’ve said it many times in this pandemic (that) this is not about making the right decision, it’s about making the least wrong decision,” he said.

Some larger employers in recent days have changed policies, including a Tuesday mandate by the Big Three automakers that employees wear masks. 

The companies and United Auto Workers have yet to impose a vaccination mandate, however.

What about my freedom?

Yes, you have a right to remain unvaccinated, experts told Bridge.

Vaccine requirements are tied to privileges, however — the privilege to stay at your job or attend a university, for instance, experts told Bridge Michigan.

Additionally, small businesses have a right to require staff and customers to follow rules, as long as they don’t discriminate against based on things like age, gender, race or disability, said Deborah Gordon, a civil rights and employment discrimination lawyer in Bloomfield Hills.

“If you wanted to have a policy at your people and say ‘I only will allow  people who wear blue shirts, and that applies to everybody that comes in, no matter what their race, their gender, their age, your property, there’s nothing illegal about that,” she said.

“It’s your property,” she said.

Don’t I have civil rights?

Federal law does not prohibit vaccine mandates, nor does it prevent an employer from asking for proof of a vaccine, the U.S. Equal Opportunity Employment Commission said in guidelines in May.

The agency made clear that employers must make “reasonable accommodations” for employees whose disability — or “sincerely held” religious belief — makes them unable to comply with a mandate.

Such accommodations include wearing a face mask at work, working remotely or at a social distance from co-workers or non-employees, or getting periodically tested for COVID.

But what about HIPAA?

It doesn’t apply, said Gordon, the employment rights attorney, who argued the 1996 law is highly misunderstood.

The Health Insurance Portability and Accountability Act prohibits very specific entities that have access to medical information — doctor offices, pharmacies and insurance companies, for example — from sharing it.

“Just asking you if you receive a vaccine that has nothing to do with invading your privacy to find out, for example, if you've ever had cancer, or if you have bipolar depression,” Gordon said.

What’s the connection to smallpox?

There are several lawsuits challenging vaccine mandates making their way through the courts, including one dismissed this year between workers who sued Houston Methodist Hospital over its COVID-19 vaccine requirement.

The legal fight is hardly new though.

With smallpox still a deadly threat, Cambridge, Massachusetts, in 1901 ordered residents to be vaccinated against it or be fined $5. A local pastor, Henning Jacobson, argued the order violated both state and federal constitutions and that “compulsion to introduce disease into a healthy system is a violation of liberty.”

The case went to the U.S. Supreme Court, which ruled against Jacobson.

Its importance and relevance to the pandemic today may be arguable, but the case did help establish the authority of public health and government in matters of disease control.

Can I refuse the vaccine if my employer mandates it?

Absolutely. 

But don’t expect to keep your job.

More than 150 people were fired or left their jobs at Houston Methodist after it ordered them to be vaccinated. A lawsuit related to the terminations was quickly dismissed.

The federal government has ruled that employers can fire workers ho “would pose a direct threat due to a 'significant risk of substantial harm to the health or safety of the individual or others.'"

Will I be required to be vaccinated as a citizen?

Highly unlikely.

For one, it isn’t “feasible politically, practically, legally,” said Dr. Michael Stellini, who specializes in palliative care at Wayne State University.

“We’re a long way away from that,” agreed Bagley, the University of Michigan law professor, adding that “that kind of heavy handed requirement from the government would be counterproductive.”

Do labor contracts make a difference?

It depends.

Gordon, the employment law attorney, said contracts may prevent a vaccine requirement if there’s language already in the contract. Few likely have such language, simply because vaccines aren’t usually top-of-mind at the bargaining table unless its a healthcare employer.

In the case of Ascension Health employees, who are among those who are required to be vaccinated now, a September 2020 contract allows the employer to mandate a vaccine. 

But employers generally work out the specifics of the vaccine — when it will be required and who might be exempted, for example — with the union, said President Jeff Morawski, president of the Office and Professional Employees International Union Local 40.

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