CLEVELAND (WJW) – As the pandemic continues to show no sign of slowing, the list of employers and events changing policies to require a mandatory COVID-19 vaccination or proof of a negative test continues to grow, despite some opposition.
The deputy legal director for the American Civil Liberties Union of Ohio explains if these types of vaccine mandates could withstand a legal challenge.
“Private employers frankly have a lot more leeway and although that may create some issues with labor law in general, they are going to have a lot more freedom to require their employees to get vaccinated,” said David Carey of the ACLU.
Monday, a crowd gathered outside of Summa Health in Akron to protest a new policy requiring COVID-19 vaccinations, with a few exceptions, by the end of October.
In response to the protest, Mike Bernstein, the System Director for Corporate Communications at Summa Health, stated, “We understand there are varying feelings about the COVID vaccine, and we respect the right of people to peacefully share their perspective. Ultimately, our COVID vaccination policy is based on science and supports our mission and promise as a health care organization to care for our community. The policy remains in place.”
Akron Children’s Hospital also recently announced a change in policy that COVID-19 vaccinations or regular mandatory testing will be required of employees. The date that the policy would go into effect was not stated.
All three of Cleveland’s largest hospitals, MetroHealth, the Cleveland Clinic and University Hospitals, are not mandating a COVID-19 vaccine.
A spokesperson for the Cleveland Clinic said about 75% of caregivers there are vaccinated.
MetroHealth reports nearly 80% of employees are vaccinated.
A University Hospitals spokesperson declined to share data on how many employees are vaccinated.
“We are in a type of extreme circumstance where a private employer mandating vaccines may in fact be warranted and may not create a legal problem,” said Carey.
Recently, festivals, concert venues and events announced they will require proof of vaccination or a negative COVID test as well.
Carey said the ACLU of Ohio is watching the changes in policy carefully, but it is primarily focused on government-issued vaccine policies.
“Regarding a few instances in Ohio in which judges are sentencing people to probation are ordering them to get vaccinated, that is an area we are watching very closely because that is the government ordering someone to be vaccinated,” said Carey.
In July, the Biden administration said federal workers would have to get vaccinated or face weekly testing, social distancing and masking.
Carey said there are several reasons why the ACLU may or may not get involved in particular government action.
In this case, federal employees did have an option to undergo other steps in lieu of vaccinations, making the policy less likely to create a constitutional problem.
As for employees who fail to comply with the requirements of private employers, mounting a legal challenge and winning could prove difficult.
“It does involve telling a person what they can do with their own body and that, of course, is an area that must be treated with extreme caution. We are in the kinds of extreme circumstances where sometimes that may be appropriate,” said Carey.