With the COVID-19 vaccine anticipated to become available to the general public in 2021, many Michigan employers are questioning how they should proceed with requiring vaccinations.
Can Employers Implement A Mandatory Vaccine Policy?
Currently, there is no federal or Michigan state law mandating COVID-19 vaccinations, however, the Equal Employment Opportunity Commission (“EEOC”) has recently concluded that most employers will be able to mandate COVID-19 vaccinations for their employees performing in-person work if they choose.
However, prior to implementing a mandatory vaccine policy, employers should independently consider their own workforces and make an individualized determination as to whether there is a significant risk of substantial harm to the health and safety of those in the workplace.
Can Employers Implement An Incentivized Vaccine Policy?
Another option, rather than mandating the vaccine, is providing incentives, such as additional compensation, bonuses, vacation, or other paid time off to employees who obtain the COVID-19 vaccine.
Regardless of the route the employer chooses, having a written vaccine policy will prove beneficial in terms of applying the policy uniformly, as well as identifying various options for your employees who may have objections to the vaccine. We strongly encourage you to discuss your vaccination policy options with an attorney prior to implementation.
How Should Employers Handle Employees with Religious Objections or Disabilities?
Employers must also be mindful of employees with disabilities or religious objections which preclude them from getting the COVID-19 vaccine. In response to an employee who states that either a disability or a religious objection precludes them from getting the COVID-19 vaccine, the employer should engage in an interactive process with the employee to determine whether a reasonable accommodation is available to them.
Are There Consequences for Requiring or Failing to Require Vaccinations?
Many employers are likely wondering about potential liability if an employee has an adverse reaction to the COVID-19 vaccine. Although there has been no litigation on this particular issue yet, prior cases considering different vaccines have determined that adverse reactions to mandatory vaccinations may result in workers’ compensation claims.
Even though Michigan’s Workers’ Disability Compensation Act includes an “exclusive remedy” provision providing that the recovery of workers’ compensation benefits will be the employee’s exclusive remedy against an employer for a personal injury or occupational disease, it is possible that workers’ compensation may not apply and that tort or similar liability could arise under state or federal law.
In the alternative, it may be possible for an employee to claim that by refusing to require vaccines, their employer has not provided a safe working environment as required by the Occupational Safety and Health Act. With this in mind, Michigan employers should pay close attention to the Michigan Occupational Safety and Health Administration for further guidance regarding mandatory vaccines in the workplace.
Should I Require my Workforce to be Vaccinated Prior to Returning to In-Person Work?
Ultimately, each employer will need to conduct an individualized assessment of their workplaces prior to making this decision.