2020-12-14
Nathaniel M. Glasser and Jennifer Barna, Epstein Becker Green
As Covid-19 vaccines become widely available, employers will face a critical set of challenges, ranging from whether they can—or will want to—mandate all or some employees get vaccinated, to what liability may attach to mandating vaccination, and even whether the Occupational Safety and Health Administration (OSHA) could require a vaccine program.
While uncommon, mandatory vaccination policies are not new. For example, many health-care employers have implemented mandatory flu vaccination programs to protect staff and patients. The size and scope of the current pandemic, coupled with the desire to swiftly return employees to the physical workplace, however, means that more employers across various industries will likely consider mandating that their employees receive a Covid-19 vaccine once one becomes 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. Following are several of the most common questions employers should be prepared to answer in considering Covid-19 vaccination programs.
Can (or should) employers require employees to receive the vaccine? If so, how should employers respond to employee objections about vaccination?
For employers with represented (unionized) workforces, a mandatory vaccination program may constitute a mandatory term and condition of employment, which the employer arguably could not unilaterally impose. Thus, these employers should review their rights under the applicable collective bargaining agreements (CBA) and, if the issue is not addressed, evaluate the breadth of the management rights provision. In any event, employers should consider discussing vaccination now with any unions to reach a written memorandum of understanding (MOU).
Absent an applicable CBA restricting an employer's decision to require a vaccine, employers may unilaterally implement mandatory Covid-19 vaccination programs, provided they accommodate certain employees who raise objections under the Americans with Disabilities Act (ADA) 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 the Covid-19 pandemic), 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 based on an ADA disability or a sincerely held religious belief, practice, or observance. In each case, the employer must analyze whether it can provide a reasonable accommodation.
In the case of Covid-19, a reasonable accommodation could include telework or wearing a face mask or shield and physical distancing, or something else. In Horvath v. City of Leander, 946 F.3d 787 (5th Cir. Jan. 9, 2020), the U.S. Court of Appeals for the Fifth Circuit held that the two accommodations the defendant city offered to the firefighter plaintiff were reasonable: transfer to a position that did not require vaccination; or wear a respirator and other equipment while on duty, submit to testing for possible disease when warranted, and monitor and record his temperature.
Employers do not need to accommodate an employee's objections to a vaccination where doing so would impose an “undue hardship,” which might be hard to show if the employee can telework. But employers with frontline workers—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. 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.
Employers also should be aware of potential privacy and morale issues that could arise with a vaccine mandate. According to studies, more than one-third of Americans said they would refuse a Covid-19 vaccine if offered one. These results may be due in part to the anti-vaccination movement, but may also include individuals who typically trust the safety of vaccines but have specific concerns based on their perception of the speed with which the Covid-19 vaccine is being developed. Employers need to be sensitive to such concerns and the problems that could arise if a material portion of their workforce feels unsafe receiving a vaccine shortly after it becomes available.
Relatedly, employers will be required to maintain the privacy of vaccine and accommodation records of their employees. But, some potential solutions for accommodating employees who cannot or do not want to receive the vaccine—such as continued mask wearing, or schedule or seating changes—might inevitably lead employees to guess or assume who received the vaccine and who did not. In turn, those who did receive the vaccine might raise concerns about working in close proximity to employees they presume have not been vaccinated. It will likely make sense for employers to draft appropriate policies and procedures to avoid such issues, or to address them if they arise.
If an employer requires employees to receive the Covid-19 vaccine, who should pay for it?
It appears that employers who want to require their employees to receive the Covid-19 vaccine may not need to wrestle with the issue of who should pay the cost. The Centers for Medicare and Medicaid Services (CMS) announced a comprehensive plan to ensure that all Americans will have access to the Covid-19 vaccine at no cost when it becomes available. According to the report, CMS released an Interim Final Rule with Comment Period (IFC) establishing that any Covid-19 vaccine that receives Food and Drug Administration authorization will be covered under Medicare as a preventive vaccine at no cost to beneficiaries.
The IFC also implements provisions of the federal Coronavirus Aid, Relief, and Economic Security (CARES) Act that ensure swift coverage of a Covid-19 vaccine by most private health insurance plans without cost sharing from both in- and out-of-network providers during the course of the public health emergency.
What is the potential liability if an employer requires the vaccine, and the vaccine later causes health problems?
It is hard to predict the liability if an employer implements a mandatory vaccination policy, and the vaccine later demonstrates side effects, somehow causes other harm to an employee, or simply proves to be less effective than expected. 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 (the Act) violations, if arguable links can be made between the vaccine injury and the employer's mandatory policy.
On the other hand, a vaccine cannot be distributed without first receiving 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.
There will be obvious tension between an employer's desire to keep all employees safe at the workplace by mandating vaccination, and potential 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.
In weighing the risks, employers should note that Pfizer, for instance, has reported no serious safety concerns with its vaccine. Moderna has reported that some vaccinated individuals might expect minor, short-lived unpleasant side effects—including fatigue, sore arms, muscle or joint aches, and headache. So, while these side effects may cause some employees to miss work, they likely will not result in actionable harm. Employers more likely will have to be prepared to schedule around employees who take sick days after receiving the vaccine, and to encourage and remind such employees to get the second dose of the vaccine even if they experience mild symptoms due to the first dose.
What position might OSHA take regarding employers and Covid-19 vaccinations?
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 or mandate a Covid-19 vaccine. OSHA, however, 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, provided 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 he or she has 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.
What alternatives do employers have to mandating Covid-19 vaccination?
Rather than mandating vaccination, 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 rapid Covid-19 tests, which return results in approximately 15 minutes, become more widely available and less expensive, employers initially may wish to rely on mandatory rapid testing rather than vaccination. The EEOC has expressly approved of the use of mandatory Covid-19 tests in the workplace.
In the context of influenza vaccination, the CDC recommends that employers encourage vaccination through a variety of means. Employers should consider these suggestions in the context of a Covid-19 vaccine. Employers’ efforts to promote vaccination could include providing rewards or incentives to employees to get the vaccine, allowing employees time off of work to be vaccinated, posting and publishing promotional materials about the importance of vaccination, and, potentially, hosting a vaccination clinic at the office.
When should employers start discussing how to address any eventual Covid-19 vaccine workplace issues?
There is no time like the present. Many of the challenges employers have faced during the pandemic have felt like a fire drill. The Covid-19 pandemic hit the country quickly, and since that time, circumstances and laws have continued to change, sometimes with little or no notice. Employers would be wise to monitor the vaccine-related legal landscape, while developing plans for how they intend to address the vaccine with their workforce.
Even after a Covid-19 vaccine is widely available, there likely will be a period before we know the extent of its effectiveness in widely protecting public health. Therefore, many of the current requirements and best practices that employers have implemented, such as teleworking, mask wearing, and physical distancing, likely will be part of the workplace for some time to come.
Additionally, employers should monitor whether governments mandate a Covid-19 vaccine for any specific group. The New York State Bar Association, for example, recommended that New York consider mandating a Covid-19 vaccine once a scientific consensus emerges that it is safe, effective, and necessary, but only after conducting a public awareness campaign to encourage voluntary vaccination.
In the meantime, employers considering a mandatory Covid-19 vaccination program should:
• In represented workforces, determine whether such a program is permissible under any governing CBAs, and if the issue is not addressed, consider discussing it now with the union or unions to reach a MOU.
• If proceeding with such a program, keep vaccination records separate from personnel files, and be prepared to engage in the interactive process and provide reasonable accommodations as appropriate to employees who object to vaccination due to a disability or sincerely held religious belief.
• For those employees who object to vaccination on disability or religious grounds:
o Ensure that an employee's refusal to be vaccinated originates from a covered disability or sincerely held religious belief, understanding that employers’ challenges to claims of sincerely held religious beliefs have been heavily scrutinized by the courts.
o Consider the nature of the employee's position, as courts are more likely to require an alternative accommodation for employees who do not frequently interact with the public, and accommodations may take the form of telework, wearing of face coverings or face shields, or the transfer to a non-frontline position.
o Develop policies and practices to help avoid or mitigate, as much as possible, the morale and privacy issues that might be created by having some employees receive accommodations or permission to opt out of the program.
o Be aware of the possibility that employees who suffer side effects from the vaccination may seek to hold employers liable.
Conclusion
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.
