(Latest in a series since March on the pandemic’s employment impacts, and rebuilding America’s job base. The previous ones are here.)
As the vaccine arrives this week, so too do questions from employers regarding the role of the vaccine in the workplace and in return-to-work protocols. Can an employer mandate a vaccination for a worker to return to work?
Conversely, can an employer be required to mandate vaccines for a safe workplace? What of workers who refuse to take the vaccine due to a disability, or religious reasons or because they don’t feel safe doing so?
The Equal Employment Opportunity Commission (“EEOC”) and the Occupational Safety and Health Administration (“OHSA”) have yet to issue guidelines on these COVID-19 issues. However, to get insight we can bring in Ms. Eve Klein, the head of the Employment Labor Benefits and Immigration practice group at Duane Morris LLP, who provided legal guidance at the beginning of the pandemic in March (an employment environment that now seems a very distant one). As we noted at the time, Ms. Klein has been in the field of labor and employment law for more than 30 years, and there aren’t many issues that she hasn’t addressed over this time, including during previous public health emergencies.
Below are four prominent issues that employers need to be aware in the coming weeks, and a summary of Ms. Klein’s guidance:
Can an employer require that workers be vaccinated before returning to work?
Though the EEOC and OHSA have not issued a position on employer-mandated COVID-19 vaccination programs (they are expected to do so shortly), in 2009, both the EEOC and OSHA addressed the analogous issue during the H1N1 (“swine flu”) pandemic and found mandatory vaccination programs to be lawful, so long as certain employees are exempt.
In addition, in the EEOC’s March 2020 update to its Pandemic Preparedness in the Workplace and the Americans with Disabilities Act guidance, the EEOC stated that COVID-19 meets the ADA’s “direct threat standard,” meaning that it is not discriminatory for an employer to exclude an employee with COVID-19 from the workplace because an employee with the virus poses a “significant risk of substantial harm” in the workplace. Given this same logic, it would be surprising if the EEOC were to prohibit employers from mandating employee COVID-19 vaccinations in most circumstances.
What of exemptions on the basis of disability, religious belief, or general concern about vaccinations?
While COVID-19 is certainly far more disruptive than H1N1, it is likely employers will still need to provide exemptions to employees based on a disability or sincerely held religious belief. Employers could require employees exempt from vaccination requirements to follow enhanced safety protocols or work remotely if that is feasible.
In its swine flu guidance, the EEOC stated an employee may be entitled to an exemption from a mandatory vaccination requirement based on a disability that prevents the employee from taking a vaccine. Such an exemption would be provided as a reasonable accommodation to an employee’s medical condition, if the provision of it does not cause an undue hardship to the employer given the particular situation. So depending on circumstances, an employee who is medically intolerant to the vaccine, may be able to continue to work with this accommodation, for example, working from home, or working in the workplace with the continued employment of the now familiar mask, social distancing and hand washing practices, particularly as risk of spread declines when other employees are vaccinated.
Additionally, once an employer receives notice that an employee’s sincerely held religious beliefs, practice, or observance prevents the employee from taking a vaccine, the employer must provide a reasonable accommodation unless it would impose an undue hardship.
What about employees who do not meet an exemption but are simply not comfortable with receiving a COVID-19 vaccine? This will be the tougher issue facing employers, as companies may be reluctant to terminate employees for refusing a COVID-19 vaccine when a large portion of the population have been reported to be reluctant to receive a vaccine. Further there is the confirmation challenge. On this front, a vaccination card may be issued, vaccination data bases may be created and/or some apps may be created that would allow employers to verify an employee’s representation on this score.
Can the federal government or state governments require an employer to mandate vaccinations as part of a safe workplace?
In the EEOC’s swine flu guidance, while not prohibiting an employer from mandating a vaccination, its recommendation was that the employer should encourage rather than require employees to be mandated. But if an employer doesn’t mandate employees be vaccinated when vaccinations are available, and should such employees infect an exempted disabled employee or other employees who refused to be vaccinated, might the employer be in violation of OSHA’s general duties clause to keep employee’s safe from known workplace hazards? And alternatively, what if the vaccine should later prove to be unsafe for even a limited segment of individuals, could the employer be liable for mandating the vaccination in the context of worker’s compensation or otherwise? It is possible we may see state or federal laws that limit employer liability from issues arising after vaccination in order to encourage employers to mandate them.
Can states and counties impose vaccine protocols for workplaces, beyond federal requirements?
Employers will also need to consider state and local law, which may potentially place additional requirements or restrictions on employers who seek to implement a vaccination policy. State governments may require employers in certain industries where by the nature of the services the risk of spreading COVID-19 is higher, like healthcare, correctional services, schools and manufacturing facilities, to mandate vaccinations. Or states may seek to implement broad public vaccine mandates. For example, on December 4, 2020, AB 11179 was introduced in the New York legislature, requiring all individuals who are proven to be safe to receive a COVID-19 vaccine to receive it if public health officials determine that residents of the state are not developing sufficient immunity from COVID-19. The proposed bill would only exempt individuals who receive a medical exemption from a licensed medical professional. While the bill is only in its early stages and there is no indication whether it will pass, it is possible other states will follow New York and pass laws mandating vaccinations or, alternatively, require businesses to verify vaccination status of its employees
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The speed by which immunizations take place in the next months will be the main determinant of the speed of the job recovery in 2021. The vaccines from Pfizer and Moderna are now projected to reach around 30% of the labor force by the end of February 2021, and the remainder of the labor force not until the end of the second quarter of 2021. But these timetables are not set, and are changing daily, and looming for approval are the additional vaccines from Johnson & Johnson and AstraZeneca. Our best hope for job recovery lies in expediting the processes of distribution, in winning confidence among workers in the safety of the vaccines, and in additional clarifications of protocols and employer liability limits from federal and state governments.
Originally published at Forbes