Individuals, economies, and health care systems around the globe have been anxiously waiting for a COVID-19 vaccine. Fortunately, news from the vaccine developers is promising, and most reliable medical professionals agree that a vaccine will become widely available in the foreseeable future.
As exciting as this news is, employers might find themselves scrambling for answers if they are not prepared to handle the logistics and legality of providing the vaccine to their employees.
In this post, we’ll cover some key considerations for employers related to the COVID-19 vaccine:
- What governmental guidance has been (or will be) provided
- Legal and safety considerations
- Sorting out logistics of vaccine administration
Guidance has been issued by the Equal Employment Opportunity Commission (EEOC) and the Occupational Safety and Health Administration (OSHA) in the past, although it hasn’t specifically addressed a COVID-19 vaccine. However, employers can still find value in this guidance.
In some cases, employers can require that their employees get vaccines. According to OSHA, employers can require that employees be vaccinated for influenza. However, employers must properly inform employees of “the benefits of vaccinations.” Further, OSHA states that employees can refuse to get a vaccination due to a reasonable belief that they have an underlying health condition that creates a real danger of serious illness or death.
It has not yet been determined if this same precedent will apply to a COVID-19 vaccine, but employers will want to keep an eye on this as more OSHA guidance is released.
The EEOC is more commonly known for enforcing the Americans with Disabilities Act (ADA) and Title VII of the Civil Rights Act of 1964 (Title VII). However, the EEOC has also issued guidance regarding vaccines in the employment context. In March of 2020 around the time that COVID-19 started being widely spread in the United States, the EEOC addressed whether employers covered by the ADA and Title VII can compel employees to receive the influenza vaccine. In this guidance, it was acknowledged that there was not a COVID-19 vaccine yet and more information would be needed before specific guidance could be provided.
However, the EEOC explained that an employee may be entitled to an exemption from an employer’s vaccine requirement based on a preexisting disability that prevents the employee from taking the vaccine. This would be considered a reasonable accommodation, and the employer would be required to grant the accommodation. If an employer believes that this causes undue hardship, they can dispute the exemption. According to the ADA, undue hardship can be defined as an action requiring significant difficulty or expense when considered in light of factors such as an employer’s size, financial resources, and the nature and structure of its operation. However, you should always consult with legal counsel before taking this route.
Under Title VII, the EEOC also states that employees with sincerely held religious beliefs may be entitled to an exemption from a mandatory vaccination, which is considered a reasonable accommodation, unless it creates an undue hardship for the employer. Title VII defines undue hardship as a “request that results in more than a de minimis cost to the operation of the employer’s business.” It’s important to note that this is a much lower standard than under the ADA.
As a general rule of thumb, employers should do their best to encourage vaccination rather than mandating it. There are clear risks associated by mandating employees to receive any vaccine
Safety and Legal Concerns
Employers will be challenged to find the balance between determining how much risk to accept by allowing employees to not get vaccinated, and how much risk to accept by mandating the vaccine despite the exceptions that employees may try to claim. Allowing employees to go without the vaccine poses a safety burden to their coworkers. Trying to mandate a vaccine to employees who may claim a religious or health exemption carries the risk of lawsuits if not handled properly.
When trying to find this balance, employers will need to decide whether there are other precautions that can be put into place to protect employees, which may include social distancing protocols, requiring employees to wear masks at work, and leveraging telecommuting arrangements
If you as an employer decide to mandate employees to get a COVID-19 vaccine, you will need to be prepared for the challenge of determining if exemptions to that mandate are legitimate under ADA or Title VII. Of course, this should not be done without the advice of your legal counsel. Be prepared to make these decisions on a case-by-case basis.
You need to consider the possibility that legal claims may arise if an employee has an adverse reaction to the COVID-19 vaccine. Have a plan in place for this possibility before any employees receive the vaccine.
Sorting Out the Logistics of Vaccine Administration
Whether you decide to mandate that your employees get a COVID-19 vaccine or simply encourage them to do so, you’ll need to ask yourself the following questions:
- Will you hold on-site vaccination clinics? If so, where will you set up? What will the hours be? Who will administer the vaccines? What costs are associated with these decisions?
- Assuming that multiple versions of the COVID-19 vaccine will be available, which one will be used? Who will ultimately make that decision?
- Who will pay for the vaccine? Will it be covered by your company’s health plan?
- Will the company require or cover the costs of vaccination for the employee’s family?
- How long after the vaccine becomes available must employees receive the vaccine, if vaccination is mandated? This will be impacted based on vaccine availability.
Employers must navigate the inherent legal risks and logistics of mandating or encouraging employees to receive the COVID-19 vaccine. Some key considerations include:
- Understanding that the government allows vaccine mandates in certain circumstances, but also allows certain religious or health exemptions.
- Employers will need to weigh the pros and cons of vaccine mandates and the risks involved.
- The logistics of vaccine administration should be determined long before you implement a vaccination. Because it’s been stated that a vaccine will be available within the next several months, employers should start making these plans now.
We hope that this guidance has been helpful for you. As is the case with any complex health mandate for your employees, always have a qualified attorney review your plan to implement or encourage the COVID-19 vaccine to your employees.