COVID-19 Vaccines and the Workforce – Mandatory or Encouraged?

Getting back to normal in the next year or so may be impossible without the widespread use of COVID-19 vaccines. Although authorities do not anticipate the vaccines will be widely available until Spring 2021, employers should be considering whether to mandate or merely encourage vaccinations in the workforce.

Currently there is no definitive answer regarding mandatory vaccinations, and your plan will depend on many variables. Because this is the first pandemic in our memory and it is all new to us, consider forming a committee to monitor the status of laws, regulations, and guidance from various agencies.

Your business may be one of the lucky ones that navigated the pandemic without causing a loss of morale or culture, operating safely by working remotely, social distancing, wearing masks, and following CDC requirements. If so, setting aside all other factors, you may simply want to encourage vaccinations for the first few months that they are available, especially given potential concerns about the safety and efficacy of the vaccines and the ever-changing laws. You could do this by training and educating employees as to the efficacy of the vaccine, encouraging participation, and offering the vaccine for free (if not covered by insurance) at the workplace during work hours.

Or, mandatory vaccinations may already be decided for your business, especially if you are in an industry that provides care for others or cannot effectively social distance, e.g., health care. The Occupational Safety and Health Administration (OSHA) has not issued specific COVID-19 vaccination guidance but could under the General Duty Clause.

Both the Equal Employment Opportunity Commission (EEOC) and OSHA encourage but do not mandate flu vaccines in the workplace. Again, taking no position, the EEOC, on December 16th, 2020, updated and expanded its technical assistance COVID 19 publication to address the employer’s decision to require mandatory or voluntary COVID 19 vaccinations as they relate to the ADA, the Rehabilitation Act and GINA.

In new Section K, the Guidance states that a vaccination administered by an employer is not a medical exam, that pre-screening questions must meet ADA disability inquiry tests, and that employers can require employees to show proof of vaccination. Further, employees may refuse vaccinations due to disability, pregnancy, or religious reasons and, if so, the employer must reasonably accommodate the employee and the interactive dialogue must be utilized. The EEOC directs the employer to review how many people in the workforce already have the vaccination and the amount of contact with others. If the employee cannot be accommodated or presents a direct threat (very rigorous test), then the employer must follow company policies and all other applicable state and federal employment laws, CDC, and OSHA laws before making the decision to terminate the employee.

Mandatory vaccinations are also a mandatory subject of bargaining if you have a union contract. Finally, there will be new executive orders from governors as to COVID-19 vaccination mandates. State and local legislators in Missouri are busy considering enacting protections for those who do not want to vaccinate.

With respect to liability, if an employer has a mandatory vaccination policy and there are vaccine side effects (i.e., workers’ compensation claims), there may be liability immunity to the employer under the Public Readiness ND Emergency Preparedness Act (PREP ACT). Under the PREP Act, if employers follow the directions for administration of the COVID- 19 vaccine approved by the FDA and do not engage in willful misconduct, the government picks up the loss or claim and operates a fund of last resort.

Consult with your legal counsel regarding your COVID-19 vaccination policy as there are too many moving pieces here to give more concrete guidance.

For additional COVID-19 related information, go to our Coronavirus/COVID-19 Resource Center.

Posted by Attorney Ruth Binger. Binger serves both emerging and mature businesses concentrating in corporate law, intellectual property and technology law, cybersecurity, digital media law, and labor and employment law. Her commitment to the success of small to medium-sized businesses, and her understanding of multi-faceted issues inherent in operations, are what distinguish Binger’s practice.

Published in the January 2021 St. Louis Small Business Monthly.

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