by Ruth Binger
Getting back to normal in 2021 may be impossible without widespread COVID-19 vaccinations. Although authorities do not anticipate the vaccines will be widely available until spring, employers should be considering whether to mandate or merely encourage vaccinations in the workforce.
Currently there is no definitive answer regarding mandatory vaccinations and your plan will depend on many variables. This is the first pandemic in our memory and new to us, so consider forming a committee to monitor the status of laws, regulations, and guidance from various agencies.
Your business may be one of the lucky ones that navigated the pandemic, operating safely by working remotely, social distancing, wearing masks, and following CDC guidance. If so, you may want to just encourage vaccinations for a few months at first due to vaccine safety and efficacy concerns and ever-changing laws. E.g., you could train and educate employees on the vaccine’s effectiveness, encourage participation, and offer free vaccinations at the workplace during work hours.
Mandatory vaccinations may be decided for your business, especially if you provide care for others or cannot effectively social distance, e.g., health care. OSHA has not issued specific COVID-19 vaccination guidance but could under the General Duty Clause.
Both the EEOC and OSHA encourage but do not mandate flu vaccines in the workplace. On December 16, 2020, the EEOC, still taking no position, updated and expanded its technical assistance COVID-19 publication to address the employer’s decision to require mandatory or voluntary COVID-19 vaccinations as they relate to the ADA, the Rehabilitation Act and GINA.
Section K in the updated EEOC guidance states that: 1) a vaccination administered by an employer is not a medical exam; 2) pre-screening questions must meet ADA disability inquiry tests; and 3) employers can require proof of vaccination. An employee may refuse to vaccinate due to disability, pregnancy, or religious reasons, and must be reasonably accommodated by the employer. The employer must review how many employees have been vaccinated and the amount of contact with others. If an employee cannot be accommodated or presents a direct threat, the employer must follow company policies and all other applicable state and federal employment laws, CDC, and OSHA laws before terminating the employee.
Other considerations: Mandatory vaccinations are a mandatory subject of bargaining in union contracts; governors will issue new executive orders regarding vaccine mandates; and state and local legislators in Missouri are considering enacting protections for those who do not want to vaccinate.
Regarding liability: If an employer has a mandatory vaccination policy and the vaccine causes side effects (i.e., workers’ compensation claims), the employer may have liability immunity under the Public Readiness ND Emergency Preparedness Act. Under the act, if employers follow the FDA-approved directions for administration of the COVID- 19 vaccine and do not engage in willful misconduct, the government picks up the loss or claim and operates a fund of last resort.
Consult with your attorney regarding your COVID-19 vaccination policy. There are too many moving pieces to give more concrete guidance.
Ruth Binger is a Principal at Danna McKitrick, P.C. Binger advises entrepreneurs who found family-owned, closely held, or multi-national companies. In addition to her work with clients, she also facilitates several independent business owner peer advisory boards. She can be reached at 314.889.7167 or firstname.lastname@example.org.