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chicago family law attorney covid-19 vaccination

The COVID-19 Vaccination Is Here

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Categorized as Child Custody & Visitation

If the other parent will not vaccinate, will the courts stop parenting time?

We have been waiting for the vaccine to the coronavirus for a long time.  Now, today the first COVID-19 vaccination administered in the U.S., we know it will soon be distributed.  Most people are waiting anxiously for this vaccine, but there are individuals that do not want to be vaccinated.  For parents that are divorced or no longer together, the question of vaccination can become a point of contention. If you get your vaccination, and the other parent will not will the court allow parenting time with your child to continue?  If the other parent is employed, won’t they have to get the vaccination to keep their job?

Personally, I do not know any judge that allows for a child to go unvaccinated.  Parents have tried to convince the courts that they have religious freedom not to vaccinate, and I have seen judges remove custody from that parent.  The court is concerned with the best interests of the child and judges believe that it is the child’s best interest to be vaccinated.  In a toss-up between a person’s religious beliefs and a child’s health and safety, religion loses.  

Will a Judge Order a Parent to be Vaccinated?

Requiring the child to be vaccinated and requiring a parent to be vaccinated are two different things, however.  Many parents argue to the court that the other parent should do things to make them a better parent, arguments wrapped up in the “child’s best interest” standard.  Some arguments work.  Judges have ordered a parent to engage in anger management classes, to be drug tested before they pick up their child, and engage in other safety measures to ensure the child is safe with that parent.  But can a judge order a parent to be vaccinated themselves?  

I recently saw an article concerning employers requiring employees to be vaccinated as a condition of employment.  I am curious to see what legal theory the employers would use to ensure that their employees were vaccinated. 

Will employers be able to mandate the COVID-19 vaccination for their employees? 

I spoke to an excellent labor lawyer I know, Laura A. Balson, a partner at the law firm of GOLAN | CHRISTIE | TAGLIA  LLP to get her advice on the subject.  Laura wrote, “Unless an employee is given a written contract that guarantees employment for a specific period of time, all employees are employed “at-will.” What that means is that any employer can fire any employee, with or without notice and with or without a reason, so long as the employer doesn’t do so on an illegal basis.

Given the highly contagious nature of COVID-19 and the obligation that employers have to keep their worksites safe for all employees, many employers will expect or even mandate that employees get vaccinated once the covid-19 vaccine is widely available. While your employer can’t force you to get vaccinated, they can fire you for failing to do so, which means you’ll have to choose between getting vaccinated or no longer having a job.

Even if you work for yourself, as a sole proprietor or independent contractor, it is likely that many large customers will also require any vendors or consultants who work on-site with the customer’s employees to provide proof that they are vaccinated as well. Some people have asked whether it is an invasion of privacy for an employer to ask an employee or an independent contractor whether they have been vaccinated. In some cases, the answer may be yes. However, what we have seen already since the COVID-19 pandemic began, is that many of the standard privacy rules related to health information have exceptions when there is a public health concern or a potential risk to the safety of other employees. We should expect that the same will be true of being asked whether you have received the covid-19 vaccine.”

If the other parent is employed then, it seems that vaccinations will be required in order to keep their job.  If we draw an analogy to Laura’s comments about employers to parents, I see an argument being made that the judge should force the other parent to vaccinate.  If employers can fire you for failing to vaccinate though, it seems that a parent who does not want to vaccinate, will either need to choose between getting vaccinated or no longer having parenting time.  Parents may allege that it is an invasion of privacy for the other parent or even the court to ask if they have been vaccinated. I guess that is true, but since the covid-19 pandemic began, many of the standard privacy rules related to health information have exceptions when there is a potential risk to the safety to your child.  For those parents that are just now entering parenting agreements regarding their children, it would be wise to insert a paragraph related to vaccinations, and specifically the COVID-19 vaccination.  

If You Live in a State that Does Not Mandate Vaccinations, Does that Help or Hurt Your Argument? 

In August of 2020, Anthony Fauci, an infectious disease expert, said that the vaccine will not be mandated, but encouraged.  When it comes to public health, states are generally in charge of this decision.  If Illinois does not mandate the COVID-19 vaccination for its citizens, can a parent opposed to vaccinations use that fact in support of their unwillingness to vaccinate?  Sure.  A parent can argue anything they want, but judges (in my opinion) do not care what parents want.  Once a parent is before the court, the court cares about the child, not so much about the parent. 

The child will always come first.

Start Discussing the COVID-19 Vaccination with the Other Parent Now

Start having a discussion now about the vaccine with the other parent.  Parents already differ about social distancing and in general, how much activity outside the house is wise.  Some parents do not want the other parent traveling now and taking the child to restaurants.  If the child is exposed, the child can go home to the other parent and expose that entire household.   A lot of family law litigation already exists about activities outside the home, so I can only imagine that the vaccination argument is right around the corner.  While you are negotiating your parenting agreement, try and include a provision about the vaccination requirement for parents.  It will be easier to resolve the issue now before the vaccination becomes available.  

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