Risk Management

COVID-19 Vaccine Considerations for Employers

/ December 17, 2020 December 17, 2020

With two COVID-19 vaccines set to roll out in the U.S., planning for a post-pandemic future could soon be a reality. Pfizer and Moderna have applied and have been approved for emergency authorization for their vaccines from the Food and Drug Administration, with Pfizer’s beginning distribution this week. As employers prepare to reopen offices, they may be considering whether vaccination will be encouraged or mandated. Employers must navigate the inherent legal risks and logistics of mandating or encouraging employees to receive the COVID-19 vaccine. The Equal Employment Opportunity Commission (EEOC) and OSHA have both issued guidance on vaccines in the employment context in the past, but make no specific mention of a COVID-19 vaccine. Here are a few things to keep in mind when deciding on what’s best for your organization:

Per OSHA, employers can require employees to receive vaccinations for influenza, providing they properly inform employees of “the benefits of vaccinations.” Additionally, OSHA states that employees can refuse a vaccination due to a reasonable belief that they have an underlying medical condition that creates a real danger of serious illness or death, and that they “may be protected under Section 11(c) of the Occupational Health and Safety Act of 1970 pertaining to whistleblower rights.”

In certain industries, such as healthcare, the vaccine will be mandated. Private employers too can require their employees, as long as they properly inform their employees of “the benefits of vaccinations.” However, OSHA states that there are exceptions. If the employee has an underlying medical condition that creates “creates a real danger of serious illness or death”, they “may be protected under Section 11(c) of the Occupational Health and Safety Act of 1970 pertaining to whistleblower rights.”

The EEOC, which enforces the Americans with Disabilities Act (ADA) and Title VII of the Civil Rights Act of 1964 (Title VII), has also issued guidance regarding vaccines in the employment context. The EEOC explained that an employee may be entitled to an exemption from a mandatory vaccine based on a 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 unless it creates an undue hardship for the employer. The ADA defines an undue hardship 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.

The EEOC also states that, under Title VII, 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. Note that undue hardship under Title VII is defined as a “request that results in more than a de minimis cost to the operation of the employer’s business.” This is a much lower standard than under the ADA. As such, these exemptions and the discrimination risk posed by mandating employees to receive any vaccine—including a COVID-19 vaccine when and if it becomes available—have led the EEOC to advise employers to simply encourage vaccination rather than mandating it.

Another point for employers to consider is how they will enforce a mandate. What administrative processes will be set to verify that employees received the vaccine? What documents will be required and how will you ensure confidentiality to adhere to HIPAA standards? If someone goes against the mandate and refuses to get the vaccine, what disciplinary actions will be taken? Employers should be prepared for worst-case-scenarios, such as having to find replacements if an employee refuses to comply.

Lastly, a mandate like this requires a certain level of trust between employer and employees. As information around COVID-19 is constantly changing. Employees will turn to their employer for guidance, therefore organizations must be proactive in finding and communicating updated information. By providing the best, credible information available, employees may even be persuaded to get the vaccine on their own and prevent the organization from having to force a mandate. In any case, employers need to do what’s best for the safety and well-being of their workforce.

Employers should begin discussions on the topic of COVID-19 vaccinations at their organization today, as waiting until a vaccine is readily available may leave employers open to overlooking important legal and logistic considerations. COVID-19 is a constantly changing situation, but Exude is here to help. For more information or support, please fill out the form below:

Sources: Benefits News, Zywave