Examining the Various Questions Employers May Have Surrounding COVID-19 Vaccinations
It has been reported that a COVID-19 vaccine will be approved for production and distribution within the next few months. Once vaccinations become more widely available, we’re likely to see a rush to use the vaccine to get businesses back on track.
Looking ahead, employers will inevitably face many questions.
Which employees should get first access to a vaccine? Can employers make COVID-19 vaccinations mandatory? If so, what about employees who refuse to take a vaccination? Which vaccination from which drug manufacturer will employers recommend? How will businesses proceed with staff who are more susceptible to COVID-19 than others?
In general, once a safe and effective vaccine is available, employers will be able to require most employees to get COVID-19 vaccinations. Mandatory vaccinations in the workplace are not new and there is a fair amount of case law permitting the practice in the health care industry.
While vaccination requirements may be permissible, it is important to consider the significant exemptions recognized by laws such as Title VII of the Civil Rights Act of 1964 and the Americans with Disabilities Act. State and local laws may also have regulations related to an employee’s religion or disability. When an employee raises a religious concern or a potential issue with the vaccination based on a disability, employers should be prepared to conduct individualized evaluations of requests for accommodation.
The U.S. Equal Employment Opportunity Commission has acknowledged that COVID-19 meets the ADA’s “direct threat standard.” The designation permits more extensive medical inquiries and controls in the workplace than typically allowed under the ADA. The “direct threat” finding refers to an employee with COVID-19 in the workplace who poses a “significant risk of substantial harm” to others. As a result, a COVID-19 finding would permit employers to implement medical testing and other screening measures the ADA would usually prohibit.
Similarly, the U.S. Occupational Safety and Health Administration is also more likely to defer to employer-mandated vaccinations. The agency is currently encouraging its inspectors to get the COVID-19 vaccination when it becomes available. Employers, however, should be reminded that employees have rights under a whistleblower complaints clause pursuant to Section 11(c) of the Occupational Safety and Health Act of 1970, if they have a medical condition that creates a real danger of serious illness or death and a reasonable belief the COVID-19 vaccination would be harmful.
A decision to require or encourage vaccinations should not be undertaken lightly or without consultation with counsel. Steps and issues for employers to consider include:
- Reviewing guidelines issued by health agencies (such as the Centers for Disease Control and Prevention) and employment agencies (e.g. OSHA and EEOC) regarding vaccinations, deadlines, monitoring, compliance and personnel/staff designations who could oversee a vaccination program.
- Reviewing and updating applicable HR policies, particularly those relating to reasonable accommodations and discipline, to ensure compliance and guidance that acknowledges any new vaccine requirement.
- Determining whether vaccinations will be mandatory or strongly encouraged. Given the industry an employer is in, the exemptions that may be requested and the potential impacts on employee morale, some employers may opt for the latter.
- Evaluating alternatives to a mandatory vaccination policy, such as remote work, physical distancing, facial coverings and other CDC-recommended steps that may serve an employer’s needs. To encourage vaccinations even if they will not be required, employers should determine if it is possible to provide the vaccinations at no or little cost to employees and consider making vaccinations available on-site at times convenient to employees during their normal working hours.
- If vaccinations will be mandated, employers should work with legal counsel to create an appropriate mandatory vaccination policy, including applicable forms and notices. Employers with a unionized workforce will need to evaluate any new vaccination programs with collective bargaining considerations as they will likely have to negotiate the implementation of a mandatory vaccination program with the union.