Waiting for the COVID-19 Vaccine? Don't Waste Your Time, Create a Plan Now.

Summary: There is a real possibility that the U.S. will approve a COVID-19 vaccine in the coming months; however, there is debate as to when the vaccine will become public. When that happens, employers will face the question of whether to require employees to be vaccinated and need to start planning now.

Now that there is a realistic possibility that the U.S. will approve a COVID-19 vaccine in the coming months, employers face the question of whether to require employees to be vaccinated. Many employers face a similar question each year when they contemplate requiring employees to get a flu shot. Given the speed of the COVID-19 vaccine development, employers should create a plan before a vaccine is approved.

Mandate the Vaccine?
Employers who have a history of requiring flu vaccines in the workplace have likely already established a baseline for how they will approach the COVID-19 vaccination question. Importantly, barring a state law prohibition on mandatory vaccines, employers can require vaccines but must account for employees who require reasonable medical or religious accommodations. The employer may use the same framework for flu shots to assess whether to mandate a COVID-19 vaccine. In addition, some employers (notably health care facilities), may be required by state law to mandate employee vaccinations to protect the public. Many states require vaccinations for chickenpox, measles, tuberculosis and other communicable diseases.

Critical to establishing a mandatory vaccine program are the following considerations:

Communication
Should an employer decide to mandate the vaccine, the employer should first think through and communicate the reason for the mandate. Update any job descriptions with essential functions (i.e., travel, customer-facing positions, close interaction with other employees) that might compel a mandatory vaccination.

Exceptions/Accommodations
As with all workplace programs, employers should expect and prepare to make exceptions and accommodations. While making exceptions and/or accommodations requires a case by case analysis, employers should strive to establish consistent criteria for making such determinations. Additionally, in the case of any exception or accommodation, an employer must also plan for safety measures to protect the excepted employee and the remainder of the workforce.

Cost
If a COVID-19 vaccine is not fully funded by health insurance employers should plan to bear the cost of the vaccine for employees.

Recordkeeping
Employers should keep in mind that employee medical files must be kept separate from general personnel files. Additionally, medical information regarding employees should be treated with the appropriate confidentiality.

Safety
Mandating a vaccine does not, in and of itself, satisfy the employer’s general duty to provide and maintain a safe working environment for employees. 

Location
Employers should decide where employees will receive the vaccination.

Efficacy
Employers should consider whether a vaccine is effective and may need to refer to the CDC guidelines and or guidelines issued by state or local departments of health.  

Workers’ Compensation
Could an employee collect workers’ compensation or otherwise sue for side effects from the vaccine?

Choosing a Vaccine
Which vaccine should an employer require if more than one becomes available?

Vaccination Priority
If there is a shortage of vaccines, should certain employees receive priority under the employer’s vaccine mandate? Employers should ensure decisions here are not made based on discriminatory or impermissible considerations under the law.

What if an Employee Refuses the Vaccine?
Again, employers who require flu shots should use the same procedure for dealing with flu shot exemptions to determine whether employee refusal of a COVID-19 vaccine poses an undue safety burden on other workers and/or the public. 

Employers should also give thought to safety precautions to minimize any risk for, or created by, unvaccinated employees. Consider other actions taken to mitigate the spread of COVID-19. In addition to mandating the use of PPE (gloves, masks, etc.), employers may be able to use social distancing measures or require telework for employees who refuse the vaccine. 

Notwithstanding safety considerations for employees who refuse a vaccine, employers should also expect, and prepare to handle, requests for exemptions/accommodations from employees with medical, religious or social/political objections to a vaccine.

Medical/Religious Objections or Requests for Accommodations
This year, the EEOC updated its guidance, Pandemic Preparedness for the Workplace—originally issued in 2009 in response to the spread of the H1N1 virus—to address the novel coronavirus. The EEOC stated that businesses covered by the Americans with Disabilities Act (ADA) and Title VII of the Civil Rights Act (Title VII) can require employees to get vaccinated during a pandemic with two notable exceptions.

1. An employer may not require a vaccine for an employee with an underlying medical condition if the vaccine would place the employee at a greater risk for illness. For example, individuals with egg allergies may not be required to take a flu shot that was grown in an egg.
2. An employer cannot mandate a vaccine if an employee has a religious objection. Importantly, religious grounds are very broad and can be based solely upon an individual belief.

Where exceptions apply, the EEOC noted in its guidance that employers must provide employees with a reasonable accommodation so long as the accommodation does not pose an "undue hardship" on employers, a legal benchmark that is lower under Title VII (religious exception) than it is under the ADA (medical/disability exception). Reasonable accommodations might include requiring the employee to work from home, use of additional PPE, providing isolated workstations, removing employees from public exposure/customer-facing positions, etc.

Political/Social Objections
Given the current politically charged climate, employers may also face political and social objections to a mandatory vaccine program.  Employers already requiring vaccinations have likely faced objections to mandated vaccines proven effective for decades. These objections are typically born of the belief that mandatory vaccination poses moral, ethical and public health issues. Such ideology has commonly been referred to as the “anti-vax” movement. With a rapidly developing vaccine for COVID-19, employers should expect to encounter similar issues.  

In the past, federal courts have held that employees raising secular objections to mandatory vaccination, as opposed to objections based on "sincerely held religious beliefs," are not protected under federal law. Therefore, if an employee refuses to be vaccinated entirely on ideological grounds, employers would have grounds for termination. Employers should exercise caution, however, based on the aforementioned considerations.

Should I Simply Encourage the Vaccine Rather than Require It?
Many employers provide incentives for employees to receive flu shots. Even in manufacturing or office settings where there is limited exposure of employees to the public, employers can and should continue to encourage vaccines. Encouragement may include employer-subsidized vaccines, making vaccines available at the workplace for free or a limited expense, or making sure that company-offered health insurance covers vaccinations. Importantly, employers who strongly encourage the vaccine face far fewer issues than those who mandate it.

The Big Picture
Before mandating a vaccine, do your homework and establish a plan.  At a minimum, the plan must include a reason for the mandate, exceptions from the mandate and a plan to accommodate employees with objections to the vaccine. Termination of employment should be a last resort, as even the best plan may not protect an employer from litigation over the termination.

The authors, Margaret A. Hanson and Gene R. La Suer, are attorneys at Davis Brown Law Firm.