Time & Attendance
By Jennifer Stefanick Barna, Nathaniel Glasser
Oct. 9, 2020
Since the early days of the COVID-19 pandemic in the United States and abroad, there has been palpable anticipation for news of a safe and effective COVID-19 vaccine.
For months, many employers and employees have had to adapt to one change after another, and it is understandable to perceive the eventual availability of a COVID-19 vaccine as the light at the end the tunnel. The public is anticipating the prospects of an effective vaccine, particularly given recent announcements by Pfizer that its final data analysis indicates its vaccine has an efficacy rate of 95 percent, and by Moderna that preliminary results suggest its vaccine is nearly 95 percent effective in preventing COVID-19.
Once we do reach the vaccine milestone, however, employers are likely to face yet another set of challenges, ranging from whether they can (or will want to) mandate all or some employees to get a COVID-19 vaccine, to what liability may run to an employer that mandates vaccination, and even whether the Occupational Safety and Health Administration could require employers to establish a vaccine program.
While uncommon, mandatory vaccination policies are not new. Many health care employers have implemented mandatory flu vaccination programs to protect staff and patients.
The size and scope of the pandemic, coupled with the desire to swiftly return employees to the physical workplace, means that more employers across various industries will likely consider mandating that their employees receive a COVID-19 vaccine when one is available. Employers need to stay ahead of workplace COVID-19 vaccine issues with awareness and planning, so they can adapt their policies to meet the moment when a vaccine is approved and becomes available. Here are some common questions employers and HR leaders should be prepared to answer in considering COVID-19 vaccination programs.
Q. Can (or should) employers require employees to receive the vaccine? If so, how should employers respond to employee objections about vaccination?
A. Employers may implement mandatory COVID-19 vaccination programs provided they accommodate certain employees that raise objections under the Americans with Disabilities Act and Title VII of the Civil Rights Act. Although the Equal Employment Opportunity Commission has not provided specific guidance related to a COVID-19 vaccine, employers can look to existing EEOC guidance: Pandemic Preparedness in the Workplace and the Americans with Disabilities Act (originally drafted in response to H1N1, but updated for COVID-19), which addresses the need for employers to make reasonable accommodations for employees with disabilities or sincerely held religious beliefs.
In that guidance, the EEOC notes that even in a pandemic, employers cannot institute a blanket vaccination requirement without making exceptions for medical conditions or religious beliefs. Employees may be entitled to an exemption from a mandatory vaccination requirement: (a) based on an ADA disability that prevents them from taking the vaccine; or (b) the employee has a sincerely held religious belief, practice or observance that prevents them from taking the vaccine. In each case, the employer must provide a reasonable accommodation.
In the case of COVID-19, a reasonable accommodation could include telework or wearing a face mask and physical distancing, or something else. Indeed, in a recent case, the Fifth Circuit Court of Appeals held that the two accommodations the defendant city offered to the firefighter plaintiff were reasonable: (1) transfer to a position that did not require vaccination; or (2) wear a respirator and other equipment while on duty, submit to testing for possible disease when warranted, and monitor and record his temperature.
Nonetheless, employers do not need to accommodate an employee’s objections to a vaccination where doing so would impose an “undue hardship.” Of course, undue hardship may be hard to demonstrate if the employee can telework. But employers with frontline workers, such as doctors, nurses, first responders and potentially even retail workers likely will have an easier time proving that a request not to be vaccinated constitutes an undue hardship. Furthermore, most of the existing case law on what constitutes an undue hardship comes in the context of patient care for health care employers, where the risk of infecting vulnerable patients is significant. Courts may be more inclined to rule against mandatory vaccination policies in the office-space context.
In addition to these legal considerations, employers also should be aware of potential employee morale issues with requiring vaccination. According to recent studies and news reports, approximately one-third of Americans would refuse a COVID-19 vaccine if offered one now. One recent poll found that as many as 49 percent of responders said they definitely or probably would not get vaccinated at this time. These results may be due in part to the anti-vax movement but may also include individuals who typically trust the safety of vaccines. Employers need to be sensitive to such concerns from their employees and the problems that could arise if a material portion of their workforce feels unsafe with the idea of receiving a vaccine shortly after it becomes available.
Q. What is the potential liability if an employer requires the vaccine and the vaccine later causes health problems?
A. It is hard to predict the liability if an employer implements a mandatory vaccination policy and the vaccine later demonstrates side effects or somehow causes other harm to an employee. Employees injured by a COVID-19 vaccine that was mandated by a work policy may attempt to bring lawsuits against employers for, among other things, workers’ compensation, negligence, and Occupational Safety and Health Act violations if arguable links can be made between the vaccine injury and the employer’s mandatory policy.
On the other hand, to be distributed, the vaccine will have had to first receive FDA approval or emergency use authorization. At least as to negligence and claims under the Act, employers will be able to argue that they were simply following the government’s safety assurance. In addition, there will be obvious tension between an employer’s desire to keep all employees safe at the workplace by mandating vaccination and resultant harm to individual employees due to side effects. Certainly, employers will need to balance the advantages and risks before deciding how to proceed.
To reduce risk, employers who are considering a mandate might consider limiting it to high-risk positions, departments, worksites, or locations. Alternatively, employers may consider promoting non-mandatory tools and policies, such as educating and reminding employees about the importance and benefits of vaccination, providing free and convenient access to the vaccine and giving small incentives or rewards to employees who get the vaccine. Moreover, as antigen tests (i.e., inexpensive, rapid COVID-19 tests the return results in approximately 15 minutes) become more widely available, employers initially may wish to rely on mandatory antigen testing rather than vaccination. The EEOC has expressly approved of the use of mandatory COVID-19 tests in the workplace.
Q. What position might OSHA take regarding employers and COVID-19 vaccinations?
A. OSHA has not promulgated a rule regarding airborne diseases like COVID-19. Given the above-described Title VII and ADA issues, it seems unlikely that OSHA would affirmatively require employers to offer a COVID-19 vaccine or to require employees to receive it. However, OSHA potentially could rely on the Act’s general duty clause (which requires employers to furnish “a place of employment … free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees”) to cite an employer that fails to make the vaccine available to its employees.
OSHA has previously taken the position that employers can require employees to receive the flu vaccine, so long as they properly inform employees of the benefits of the vaccinations. Additionally, OSHA has explained that an employee who refuses a flu vaccination because of a reasonable belief that they have a medical condition that creates a real danger of serious illness or death (such as serious reaction to the vaccine) may be protected under Section 11(c) of the Act, which pertains to whistleblower rights. This is yet another consideration for employers considering whether to implement a COVID-19 vaccination mandate.
Q. When should employers start discussing how to address any eventual COVID-19 vaccine workplace issues?
A. There is no time like the present. Many of the challenges employers have faced over the past six months have felt like a fire drill. The pandemic hit the country quickly, and since that time, circumstances and laws have continued to change, sometimes with little or no notice. While there are no guarantees on whether and when a COVID-19 vaccine will ultimately be approved, several clinical trials are underway. Employers would be wise to take advantage of this time by monitoring the vaccine-related legal landscape, while developing plans for how they intend to address the vaccine with their workforce.
Employers that do decide to implement a mandatory COVID-19 vaccination program should:
There are a wide scope of concerns facing employers as they consider COVID-19 vaccination programs, but with proper preparation and in-depth research, employers can move forward into a new era of work with a concrete plan ensuring the maximum level of safety and concern for their workforce.
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