Mandating the COVID-19 Vaccine: Important Considerations
The COVID-19 vaccine will begin to become available to Americans in just a few weeks. It will initially be available only to frontline healthcare workers and people with increased risk for severe illness or death from COVID-19. Nevertheless, employers should now be considering whether they will require their employees to be vaccinated.
As discussed in this article, employers who want to mandate COVID-19 vaccinations probably have the legal right to do so. Good news for employers who want their employees to be vaccinated, right? Perhaps. But as the old saying goes, “be careful what you wish for.”
According to a recent Gallup survey, 42%of Americans will refuse the vaccine. If that happens in the face of an employer’s mandate, will the employer really terminate the employment of 40% of its workforce? Or even 10% of its workforce? Probably not. And if it does, will that employer be able to continue operations? Again, probably not.
No doubt there are some jobs within some industries where an employer should mandate that its employees be vaccinated as soon as the vaccine becomes available to them. These are employees who, by the very nature of their jobs, are most likely to become infected or to infect others. The clearest example is health care workers who provide direct patient care. But others may also fall into this category, including first responders, restaurant workers, and transit employees, just to name a few.
For those employees less likely to become infected or to infect others, employers should consider using the “carrot” approach rather than the “stick” approach. Those employees could be incentivized to be vaccinated as soon as possible. The incentives can take the form of a reduction in health insurance premiums, a cash bonus, or something else of value to them. It may also be a good idea for the employer to let these employees know that, eventually, all of its workers may be required to be vaccinated. For those employees who continue to refuse the vaccine, employers should know that the passage of just a few weeks or a month will likely help. Once these recalcitrant employees see that their vaccinated co-workers, friends, and the vast majority of Americans (including former Presidents and their sports and entertainment idols) have suffered no significant ill-effects from the vaccine, then many of them will agree to be vaccinated. Of course, there will always be some employees who still refuse. That is probably the time for the employer to mandate vaccination, and then discharge those employees who remain uncooperative.
So, every employer should initially consider two things: First, what is the likelihood of its employees becoming infected with, or spreading the virus, considering the nature of their job duties? Second, how much will its employees resist a vaccine mandate?
Pushback or not, the vaccine will need to be mandated for certain positions that are at high risk for transmitting the virus to, or getting it from, others. As for all other employees, the question becomes whether a significant portion of them will refuse vaccination. If not, then the employer may want to mandate vaccination for those employees. But if the employer believes that a significant number of employees will refuse to be vaccinated, then it should strongly consider the “carrot” approach for them. If it does so, then for employee relations purposes it should also provide the “carrot” to those employees previously vaccinated because it was mandated.
EEOC and OSHA Guidance for Mandating Vaccines
Neither the U.S. Equal Employment Opportunity Commission (“EEOC”) nor the Occupational Safety and Health Administration (“OSHA”) have issued specific guidance that informs employers whether they can require the employees to get the COVID-19 vaccine. However, guidance from the EEOC and OSHA during the 2009 H1N1 epidemic likely provides some insight into what employers can expect from each agency in the near future.
In 2009, the EEOC explicitly said that employers can mandate that their workforce receive the flu vaccine so long as employers provided reasonable accommodations to people with religious and medical objections as required under the Title VII of the Civil Rights Act of 1964 (“Title VII”) and the Americans with Disabilities Act (“ADA”).
For Title VII religious accommodations, an employer need not accommodate an employee’s political or personal objections to taking the vaccine. Rather, only employees with a sincerely held religious belief, practice, or observance that prevents them from taking the vaccine will qualify for protection. Employers that question the sincerity of an employee’s religious beliefs may request additional information from the employee in order to verify the basis of the employee’s accommodation request.
Even if an employee has a sincerely held religious belief, an employer is not required to accommodate the employee if doing so would pose an undue hardship on the employer. To prove undue hardship in the context of denying a religious accommodation, an employer need only show that “more than de minimis” cost or burden would occur if the employee is provided with the requested accommodation. Therefore, if as an accommodation an employee requests telework, the use of a face mask/shield, social distancing measures, or a modified work schedule, as an alternative to vaccination, the issue will be whether those accommodations will involve more than de minimis cost or burden to the employer. The inquiry will need to be made on a case-by-case basis, taking into account not only cost, but also the employee’s job duties and the risk to coworkers and others by having a non-vaccinated individual in their presence.
The EEOC guidance explains that the ADA requires employers to provide reasonable accommodations to employees that cannot receive the influenza vaccine due to an employee’s qualified disability. Unlike Title VII, however, it is more difficult for an employer to deny an accommodation requested by an employee with a disability. Instead of merely being more than de minimis cost or burden, the employer must show that an accommodation creates “significant difficulty or expense.”
OSHA similarly provided guidance regarding the 2009 H1N1 epidemic, albeit less straightforward than the EEOC. OSHA emphasized at that time that employees need to be properly informed of the benefits of the influenza vaccine. It also clarified that if employees refuse the vaccine due to a reasonable belief that they have a medical condition creating a danger of serious illness or death – possibly in reaction to the vaccine – they may be protected under the whistleblower protections in Section 11(c) of the Occupational Safety and Health Act (“OSH Act”).
What OSHA’s 2009 guidance failed to provide was more information regarding how it will use the OSH Act’s General Duty Clause to issue citations to employers that do not offer vaccines to its employees. Citations under this clause are issued when no specific OSHA standard applies. At present, no specific OSHA standard applies to the vaccine.
Requiring employers to provide the vaccine might seem intrusive, but employers would be wise to consider the substantial political pressure that OSHA currently faces and how it has responded to such pressure in the past. For example, OSHA’s Bloodborne Pathogens Standard was issued in 1991, mostly in response to the HIV epidemic. As a result of that standard, employers are required to offer the Hepatitis B vaccination to all employees who may reasonably anticipate contact with blood while performing their job duties. It is not out of the realm of possibilities that OSHA will similarly require employers to provide a COVID-19 vaccine to employees that could reasonably come in contact with the virus.
Employers with a unionized workforce should ensure that they are in compliance with their labor contract obligations before mandating that bargaining unit workers be vaccinated. Pursuant to the National Labor Relations Act (“NLRA”), an employer mandate not supported by specific management rights in an existing labor contract might constitute a mandatory subject of bargaining. Employers subject to these conditions would have a duty to bargain over vaccine requirements before implementation.
In both unionized and non-unionized settings, employers must also be mindful of NLRA rights that grant employees the ability to engage in “concerted activities” for the purpose of “mutual aid and protection.” These activities might include protesting against a mandatory vaccination policy or organizing office communications regarding the vaccination mandate. An employer’s attempt to discipline employees for such activity could very well place the employer in violation of the NLRA.
State laws will also likely impact the ability or requirements of employers to mandate the COVID-19 vaccination.
For example, nearly all states require health care employers to offer or even mandate various immunizations to their employees for the seasonal influenza, measles, mumps, and other illnesses. Some states even strictly limit the reasons that an employee may decline a vaccine. Others, such as Alabama, Kentucky, Massachusetts, North Carolina, Pennsylvania, and Tennessee permit an employee to decline the influenza vaccination for any reason so long as the employee was informed of the health risks beforehand. Due to these current laws in place, state legislators may apply these or similar laws to the COVID-19 vaccine.
Workers’ Compensation Claims
Depending on the individual case and state, workers’ compensation laws may apply where workers experience injuries or side effects allegedly caused by a COVID-19 vaccine. This is particularly true for employers that mandate or strongly encourage employees to receive the vaccination, as various states have sided with employees on such claims for other mandatory vaccination programs.
The purpose of this article is merely to provide employers with important considerations as they begin preparing for the arrival of the COVID-19 vaccine. With few answers of certainty at the moment, employers should be mindful of any new developments in the fields described above. We also encourage employers to consult with legal counsel before implementing policies concerning the vaccine.
 Note that offering an incentive in the form of a reduction in health insurance premiums may have legal implications related to an employer’s group health plan.