Is It Possible? An Outlook on Workplace Vaccine Requirements
12.16.2020
By: Safran Staff
As the vaccine rollout in the United States begins this week, many are looking ahead with expectancy about 2021 and potentially an answer to ending the pandemic. The next step for many companies and workplaces in adapting to ever-changing circumstances is the concept of requiring a vaccine for its employees to return to work.
Below is a look into four professional perspectives about what to expect once a vaccine is widely available and the impact on the workplace:
POTENTIALLY INDUSTRY DEPENDENT
As a preliminary matter, whether a private employer can implement a mandatory vaccine policy and require vaccinations depends largely on the employer’s business. It is well-settled that vaccinations and health screenings are “medical examinations” under the Americans with Disabilities Act (“ADA”) and, therefore, the vaccination must be job-related, consistent with business necessity or justified by a direct threat, and no broader or more intrusive than necessary, for the vaccination to comply with, and be permissible under, the ADA. This is why health care providers, schools, nursing homes, and other employers that work in high risk environments or with high risk populations customarily can require mandatory vaccinations while other employers, who may not be able to satisfy this standard, may not.
-Benjamin Widener, National Law Review
GUIDELINES LIKELY BASED ON PRECEDENTS
Federal agencies have not yet issued specific guidance for employers. However, in March the Equal Employment Opportunity Commission said employers can require workers to take COVID-19 screening tests, and that rationale will likely be applied to mandatory vaccination, he said. There is also precedent from prior pandemics, including smallpox and the H1N1 swine flu, when employers were given leeway to require vaccines.
Workplaces most vulnerable to infection, such as hospitals and other health care facilities, are most likely to require employees get inoculated. Many hospitals mandate employees get the flu vaccine during non-pandemic times, said Michael LeRoy, professor in the School of Labor and Employment Relations at the University of Illinois at Urbana-Champaign. Employers of first responders, teachers and meatpacking workers could also make compelling arguments for a mandate, he said.
-Barry Hartstein, Littler Mendelson and Alexia Elejalde-Ruiz, The Chicago Tribune
PREPARE FOR POSSIBLE CONTROVERSY
Employers must be cognizant of the fact that employer-mandated vaccinations may be a controversial issue amongst employees. The adoption of a mandatory vaccination program could be the source of morale problems as well as disciplinary issues. That is particularly true now given some recent polling showing a reluctance of some employees to receiving a COVID vaccine, once available. Employers should carefully consider legal issues that could arise before instituting such a policy, including: (1) employee attempts to organize under the National Labor Relations Act (“NLRA”); (2) violation of privacy claims; and (3) other legal claims, including, for example, claims that (a) an employee had an adverse reaction to the vaccine, or (b) an employer failed to reasonably accommodate an employee seeking to be excused from a vaccine requirement due to a disability or for religious reasons.
-Kevin O’Connor, Aaron Schlesinger, Lauren Davis, Peckar and Abramson
ADDITIONAL CONSIDERATIONS TO INCLUDE
In addition to the legal issues, employers may also want to consider the politicized and polarized nature of the cultural dialogue surrounding prevention of COVID-19 transmission. Imposition of a mandatory COVID-19 vaccine will almost certainly result in a slew of accommodation requests—medical, religious, personal, and ethical—fueled by mistrust of political leaders and the healthcare industry. An August 2020 study found that one-third of Americans would refuse a COVID-19 vaccine, even if one were available. And, if large numbers of people feel the need to be exempt from wearing a mask or face covering (which is significantly less intrusive than receiving a vaccination), then employers likely can expect an equal or greater objection to a new vaccine (which may be viewed as risky and/or ineffective).
-Bret Daniel, James Paul, Jimmy Robinson Jr., Ogletree Deakins
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