With employers seeking to bring employees back to work and COVID-19 vaccines in development, some workplaces may want their workers to get the vaccine.
We spoke with Rebecca Demaree, a partner with Cornelius & Collins and leader of the firm's employment and labor practice, about the legal questions surrounding the — hopefully — coming vaccine.
Can an employer require employees to be vaccinated as a condition of their returning to on-site work locations?
Yes, if the employer has made a determination that it is job-related, consistent with business necessity, the employer has clearly communicated the policy of requiring vaccinations to the employees and notified employees of the procedures to request an exception.
Tennessee employers with more than eight employees will be subject to most of the laws governing this analysis. OSHA, the Americans with Disabilities Act, Title VII of the Equal Employment Opportunities Act and the Tennessee Human Rights and Disabilities Acts as well as the Workers’ Compensation Laws all have provisions that may impact the employer’s decision whether to mandate employee vaccinations.
Most health care employers will likely require vaccinations — certainly of employees who work directly with patient care. For other employers, the pros and cons are less obvious. Employers must consider not only whether they can mandate vaccines but whether they should. Some workforces may still have a number of employees who will be skeptical of new vaccines for many reasons — some grounded in health concerns but some that perhaps impact an employee’s religious or even political beliefs. Resistance to a vaccination mandate might spark push back under section 7 of the National Labor Relations Act as “protected concerted activity.”
Perhaps an employer might be better served to “encourage” vaccination rather than mandate vaccination. For example, if employees routinely work from home or are at lower risk of transmission, then incentives to encourage vaccination might be more appropriate. Employers could provide an easy location for vaccination during work time, subsidize the costs of vaccination or even provide a “wellness” benefit in the form of gift cards or health insurance benefits for employees who choose vaccination.
Once an employer has determined that vaccination should be a requirement, there are still exceptions to a blanket requirement — employers must have procedures in place for employees to seek exceptions for medical reasons or for reasons impacting their sincerely held religious beliefs. The “accommodation” discussion procedures should already be in place for most employers and those same procedures can be followed with vaccination objections.
Employers must also consider whether they are required to compensate employees for the time spent being vaccinated and for the cost of the vaccine itself. As always, employers should seek expert legal advice on their individual policies and procedures.
What repercussions should employers anticipate if they require vaccinations?
The EEOC and OSHA have provided some guidance on mandatory vaccinations in the context of a flu vaccine. Although there is no blanket prohibition on requiring vaccination, employers must allow for exceptions under the disability and religious discrimination laws. There must be a procedure in place for most employers that allows an employee to request an accommodation based on a disability that prevents the employee from taking the vaccine based upon their medical condition. An employer may ask for supporting medical documentation from the employee supporting their request and, unless accommodating the request would create an undue hardship, the request should be granted. The employer may consider reassigning the employee, providing other protective equipment for the employee or changing other work conditions that would allow the employee to continue their employment.
Employers must also be prepared to accommodate employees who object to a vaccination on grounds of a sincerely held religious belief. The accommodation procedures are similar to those based upon medical conditions, but the beliefs may be less familiar to the employer. As always, seeking legal advice is the best practice with most accommodation requests.
Employers who choose to mandate vaccinations must also consider the potential that an employee may have an adverse reaction to a vaccine. The employer may be subject to a workers’ compensation claim if the adverse reaction constitutes a “work related injury.”
There may also be push back from the workforce if the employer’s policy mandating vaccines is not viewed as sufficiently job-related or if the policy is not communicated effectively so that employee concerns can be addressed. Employers are well advised to put thought into their decision whether to mandate vaccination and be prepared to clearly communicate the business reasons for that decision.
Are there precedents for requiring vaccinations in similar situations to the COVID pandemic?
Yes, as early as 1905, the U.S. Supreme Court upheld mandatory smallpox vaccination programs to preserve the public health. Vaccinations are required in public school systems and for health care workers as a matter of public safety and to prevent transmission of communicable diseases.
Employers in high-risk categories have had immunization policies that have withstood legal challenge. As legal protections for employees have evolved, employers must now consider risks for the individual employee as well as for the workforce as a whole. The pandemic has raised unique issues for employers requiring rapid evolution and differing responses to the public health crisis from day to day and jurisdiction to jurisdiction.
Although there is not yet a vaccine for the 2019 novel coronavirus, there is interim guidance from the CDC on which groups might be among the first to have access — those “essential workers” who have been on the front lines of the national response. Once the vaccine is widely available, more and more employers will need to make the considered decision whether to require wholesale vaccination of their workforce. By that time, there will likely be further guidance from state and federal agencies. For now, it is good for employers to begin planning for the next phase of COVID.
This story first appeared in our partner publication the Nashville Post.