Is a COVID-19 Vaccine the Key to Returning to a "Normal" Workplace?
Contact Clara (C.B.) Burns, Charles C. High, Jr., Michael D. McQueen and Gilbert L. Sanchez -
November 18, 2020
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With COVID-19 vaccine candidates showing promising results in the final phases of trials, employers are undoubtedly hopeful that a vaccine will enable them to return to a pre-COVID workplace in the near future. Recent findings and announcements are encouraging and pharmaceutical companies are moving quickly to obtain approval to manufacture and distribute the highly anticipated COVID-19 vaccines. But there are several lingering questions for employers hoping to return to normal operations with a vaccine. Below our Labor and Employment Department answers a few pressing questions pertaining to a COVID-19 vaccine and the effect it will have on your workplace.
Can employers mandate a vaccine? Probably yes, but with exceptions.
Although a COVID-19 vaccine has not been approved and the EEOC has not provided guidance, the EEOC’s guidance pertaining to other vaccines is helpful. The EEOC advised employers in recent guidance to encourage, but not require employees to get flu vaccines. The EEOC reminded employers that if they require flu shots, an employee may be entitled to an accommodation based on an ADA-disability that prevents them from taking the vaccine. An employee may also be entitled to an accommodation based on a sincerely held religious belief or practice. Employers must evaluate and respond to such requests on an individualized basis.
Based on this guidance, employers will likely be able to require employees to receive the COVID-19 vaccine once it is approved by the FDA and becomes available. Vaccine requirements should be job-related and consistent with business necessity. Employers should ensure that they are able to articulate how the vaccine is job-related and consistent with business necessity. State and local law may also affect an employer’s right to require vaccinations, so it is important to monitor state and local authorities’ views on a COVID-19 vaccine.
While it is likely that mandating a COVID-19 vaccine will be permissible, employers should carefully consider its workplace’s specific circumstances before deciding whether to require a COVID-19 vaccine, as well as determine whether this requirement will apply to some or all employees. Some work settings may benefit from solely encouraging employees to obtain the vaccine versus mandating it. For example, assembly line employees who are at a higher risk of contracting COVID-19 may be required by their employer to obtain a COVID-19 vaccine, while an employee working remotely or in an office setting may only be encouraged to obtain the vaccine because of limited interactions the office employee has with others.
Further, employers should ensure that their policies fully inform employees of a vaccine mandate. The workplace policies should spell out how employees may seek an exemption as an accommodation, based on a medical condition or a sincerely held religious belief. If an employee seeks an exemption on either or both bases, employers must be prepared to engage in, and document, an interactive exchange with the employee to determine whether a reasonable accommodation would enable the employee to perform his or her essential job functions without compromising workplace safety.
Would a mandated vaccine be considered a medical exam under the ADA? Yes, but likely will be allowed.
The EEOC has expanded its view on what medical examinations are permissible because of the COVID-19 pandemic, including temperature checks, symptom screening, and COVID-19 testing. The ADA governs what medical information employers can seek from employees, prevents employers from excluding employees with disabilities from the workplace unless they present a “direct threat,” and requires employers to reasonably accommodate employees with disabilities. Under the ADA, a “direct threat” exists if there is “a significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.”
Vaccines have been viewed as medical examinations under the ADA. The EEOC, however, has not expressly discussed whether a mandated COVID-19 vaccine would be considered a medical exam. Based on the continued risks posed by COVID-19, an employer most likely would be able to demonstrate the legal justification for required vaccinations based on the “direct threat” standard and the health risks posed by COVID-19. For example, in dealing with COVID-19 testing, which the EEOC determined constitutes a medical examination, the EEOC drew a distinction between viral tests and antibody tests, finding that only viral tests constitute “safe and accurate testing.” The EEOC followed recommendations by the CDC and information provided by the FDA. It is anticipated that the EEOC will defer to the CDC and FDA in determining whether a COVID-19 vaccine is safe and reliable. It is key for employers seeking to mandate the COVID-19 vaccine to articulate how the vaccine is job-related and consistent with business necessity before making a decision on whether to mandate the vaccine.
If mandated, and the vaccine has long-term effects that are unknown at the time, would this raise a workers’ compensation issue? Unclear at this time, however, begin obtaining information from your workers’ compensation carrier to ascertain your coverage.
It still remains unclear whether a COVID-19 vaccine may cause side effects or adverse reactions to certain segments of the population. This inevitably poses risks for employers who seek to mandate the vaccine. Because the risk of suffering an adverse reaction to a potential vaccine exists, employers seeking to mandate the vaccine should check with their workers’ compensation carrier to ascertain whether there is coverage for such a potential workers’ compensation claim.
Despite the sense of urgency in developing and receiving approval for a COVID-19 vaccine, employers needs to be aware that there will be some significant delays until a vaccine is available for the general public. According to the CDC, a priority list has been developed for those who will be eligible to receive the vaccine, which will be a four-phase process. This delay may provide more insight as to the “risk,” if any, a COVID-19 vaccine poses to your employees and assist with weighing the benefits and risk.
Overall, evaluating the risk of COVID-19 and the benefits of mandating a vaccine should be evaluated in advance of the vaccine being approved and distributed to ensure the employer’s policies are implemented with ease. Employers must consider a broad range of issues, such as equal employment opportunity compliance, labor relations, workers’ compensation, employee safety and other evolving issues, including the anti-vaccine movement, in deciding whether implementing the vaccine is feasible and wise for its workplace. If you have any questions about mandating a COVID-19 vaccine or need assistance drafting language for your employment policies in light of a vaccine, please feel free to contact Kemp Smith’s Labor and Employment Department at 915-533-4424.
Can employers mandate a vaccine? Probably yes, but with exceptions.
Although a COVID-19 vaccine has not been approved and the EEOC has not provided guidance, the EEOC’s guidance pertaining to other vaccines is helpful. The EEOC advised employers in recent guidance to encourage, but not require employees to get flu vaccines. The EEOC reminded employers that if they require flu shots, an employee may be entitled to an accommodation based on an ADA-disability that prevents them from taking the vaccine. An employee may also be entitled to an accommodation based on a sincerely held religious belief or practice. Employers must evaluate and respond to such requests on an individualized basis.
Based on this guidance, employers will likely be able to require employees to receive the COVID-19 vaccine once it is approved by the FDA and becomes available. Vaccine requirements should be job-related and consistent with business necessity. Employers should ensure that they are able to articulate how the vaccine is job-related and consistent with business necessity. State and local law may also affect an employer’s right to require vaccinations, so it is important to monitor state and local authorities’ views on a COVID-19 vaccine.
While it is likely that mandating a COVID-19 vaccine will be permissible, employers should carefully consider its workplace’s specific circumstances before deciding whether to require a COVID-19 vaccine, as well as determine whether this requirement will apply to some or all employees. Some work settings may benefit from solely encouraging employees to obtain the vaccine versus mandating it. For example, assembly line employees who are at a higher risk of contracting COVID-19 may be required by their employer to obtain a COVID-19 vaccine, while an employee working remotely or in an office setting may only be encouraged to obtain the vaccine because of limited interactions the office employee has with others.
Further, employers should ensure that their policies fully inform employees of a vaccine mandate. The workplace policies should spell out how employees may seek an exemption as an accommodation, based on a medical condition or a sincerely held religious belief. If an employee seeks an exemption on either or both bases, employers must be prepared to engage in, and document, an interactive exchange with the employee to determine whether a reasonable accommodation would enable the employee to perform his or her essential job functions without compromising workplace safety.
Would a mandated vaccine be considered a medical exam under the ADA? Yes, but likely will be allowed.
The EEOC has expanded its view on what medical examinations are permissible because of the COVID-19 pandemic, including temperature checks, symptom screening, and COVID-19 testing. The ADA governs what medical information employers can seek from employees, prevents employers from excluding employees with disabilities from the workplace unless they present a “direct threat,” and requires employers to reasonably accommodate employees with disabilities. Under the ADA, a “direct threat” exists if there is “a significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.”
Vaccines have been viewed as medical examinations under the ADA. The EEOC, however, has not expressly discussed whether a mandated COVID-19 vaccine would be considered a medical exam. Based on the continued risks posed by COVID-19, an employer most likely would be able to demonstrate the legal justification for required vaccinations based on the “direct threat” standard and the health risks posed by COVID-19. For example, in dealing with COVID-19 testing, which the EEOC determined constitutes a medical examination, the EEOC drew a distinction between viral tests and antibody tests, finding that only viral tests constitute “safe and accurate testing.” The EEOC followed recommendations by the CDC and information provided by the FDA. It is anticipated that the EEOC will defer to the CDC and FDA in determining whether a COVID-19 vaccine is safe and reliable. It is key for employers seeking to mandate the COVID-19 vaccine to articulate how the vaccine is job-related and consistent with business necessity before making a decision on whether to mandate the vaccine.
If mandated, and the vaccine has long-term effects that are unknown at the time, would this raise a workers’ compensation issue? Unclear at this time, however, begin obtaining information from your workers’ compensation carrier to ascertain your coverage.
It still remains unclear whether a COVID-19 vaccine may cause side effects or adverse reactions to certain segments of the population. This inevitably poses risks for employers who seek to mandate the vaccine. Because the risk of suffering an adverse reaction to a potential vaccine exists, employers seeking to mandate the vaccine should check with their workers’ compensation carrier to ascertain whether there is coverage for such a potential workers’ compensation claim.
Despite the sense of urgency in developing and receiving approval for a COVID-19 vaccine, employers needs to be aware that there will be some significant delays until a vaccine is available for the general public. According to the CDC, a priority list has been developed for those who will be eligible to receive the vaccine, which will be a four-phase process. This delay may provide more insight as to the “risk,” if any, a COVID-19 vaccine poses to your employees and assist with weighing the benefits and risk.
Overall, evaluating the risk of COVID-19 and the benefits of mandating a vaccine should be evaluated in advance of the vaccine being approved and distributed to ensure the employer’s policies are implemented with ease. Employers must consider a broad range of issues, such as equal employment opportunity compliance, labor relations, workers’ compensation, employee safety and other evolving issues, including the anti-vaccine movement, in deciding whether implementing the vaccine is feasible and wise for its workplace. If you have any questions about mandating a COVID-19 vaccine or need assistance drafting language for your employment policies in light of a vaccine, please feel free to contact Kemp Smith’s Labor and Employment Department at 915-533-4424.
