As we enter flu season (in the midst of a national spike in COVID-19 cases), and it now appears that a COVID-19 vaccine is on the horizon, employers are struggling with whether they should require employees to be vaccinated for seasonal influenza and/or COVID-19 infection. After the year that many have had, there is a natural reaction to jump at the idea of mandating vaccinations. But for employers, there are many considerations that should be taken into account.
Can Employers Mandate?
The first question employers must consider is: Can they mandate vaccinations of their employees? In many jurisdictions, possibly, subject to reasonable accommodation obligations under federal, state or local laws protecting employees who are disabled, pregnant or have conflicting and sincerely held religious beliefs. However, some jurisdictions prohibit or limit employers from mandating employee vaccinations and we suspect that additional jurisdictions may follow. Therefore, employers should assess and monitor closely local legislation and/or executive orders on this issue. If the employer’s employees are unionized, it needs to also consider whether the collective bargaining agreement allows it to mandate vaccines or whether it must bargain about the issue with the union. Public sector employers, and private sector employers in jurisdictions such as California, must also consider whether mandating vaccinations raises additional privacy-related concerns.
Should Employers Mandate?
Even if a company can mandate vaccinations, the more important question is should it? Companies inevitably will answer this question in different ways and for different reasons. Among other things, employers likely will want to consider their work environment, whether they are providing care for others who may not be able to vaccinate, the risk of harm to others if they don’t vaccinate, the culture in the environment and the disruption in the workplace if they mandate. Mandating vaccinations is a hot topic right now. Some individuals and companies likely will be concerned with mandating vaccinations when the vaccine is new. Many companies may face resistance from employees, which could lead to employee morale issues, dissension, union organizing or even litigation. Employers should also consider the potential workers’ compensation or other liability exposure for injuries or illnesses resulting from adverse reactions or side effects from vaccinations it mandates. Employers should first consider whether there is a need for the company to mandate the vaccination (as opposed to the state). A starting point may be to consider how the company fared during the height of the pandemic when there was no vaccine. If the company was able to reduce or eliminate the spread with other administrative controls, it may not need to incur the legal and operational risks that come with mandating vaccinations. Many employees, particularly those who are concerned, or at risk, will seek out the vaccine, regardless of any mandate, which raises the question: Do employers need to mandate, if employees (and customers) can choose to get vaccinated to protect themselves?
Can Employees Refuse?
Even if an employer mandates that its employees receive a vaccine, it can expect to receive push back from some of its employees. Some push back may be for political reasons, some may be out of fear, and some may be due to religious or medical concerns. Employees who collectively object to a term or condition of employment may have protection, at least for their objection, under the National Labor Relations Act. Employees who object for safety reasons may be protected under the Occupational Safety and Health Act and other state laws. If employees object due to a disability/medical condition or a sincerely held religious belief, employers will need to consider reasonable accommodations. There is plenty of guidance on the internet instructing employees how to raise these concerns, which can sometimes lead to the exceptions swallowing the rule.
What’s An Employer To Do?
This is potentially a divisive issue for employers. The distraction, dissension, and litigation risks posed by mandating may outweigh the potential benefits. As an alternative, employers may consider offering the vaccine to employees at no cost, rather than mandating it. Neither the EEOC or OSHA has published guidance (yet) on the issue of COVID-19 vaccines in the workplace, however, currently, both the EEOC and OSHA recommend encouraging, not necessarily requiring, flu vaccines. For many companies, particularly those outside the healthcare industry, this may be the best option with respect to COVID-19 vaccines as well.
Employers who choose to offer or mandate vaccinations should consult with counsel. Stay tuned, as we expect the states, the EEOC and OSHA to inject their own views as the COVID-19 vaccine becomes available.