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Complications the COVID-19 Vaccine May Bring for Employers

  • 03 September, 2020

While there is no exact date for when a COVID-19 vaccine will be released to the public, many experts believe that a vaccine will be out sooner rather than later, especially since it is being heavily pushed by the Federal government. Along with the vaccine, however, will also come new legal challenges for employers as they must grapple with the policies they will enact when in comes to the inoculation of their workers.

Specifically, legal experts foresee there being two options employers can take. Either employers can make vaccination mandatory, which will ultimately bring forth a safer workplace or instead opt to strongly encourage workers to get vaccinated but not make it a requirement.

Janie Schulman a partner at Morrison & Foerster LLP predicts that most employers will opt to make vaccinations mandatory as she states that “given what the country is going through right now, there will be a number of employers who will mandate it because, either for altruistic reasons [they] don’t want people to get sick at their place of business or [they are] worried about liability,” but also accedes that there will still be employers who “will take a different track and encourage” vaccination instead of requiring it.

In terms of laws dealing with vaccination in an employment context there are two: the Americans with Disabilities Act and Title VII of the Civil Rights Act. Both of these acts are upheld by the Equal Employment Opportunity Commission (EEOC).

The EEOC, in the past, released guidelines for vaccinations back when the N1H1 virus was circulating in the United States. In these past guidelines the EEOC allowed employers to mandate vaccination as long as they allowed exemptions to workers with medical conditions and for workers who refused on religious grounds.

Currently, the EEOC once again released COVID-19 specific guidelines. Yet, it does not yet give full guidance on how to proceed for COVID-19 vaccination. It only encourages employees to get a flu vaccine and then specifically reminds all that a COVID-19 vaccine is not yet available. Most see this as the EEOC being cautious and revisiting COVID-19 vaccine guidelines once a vaccine is closer to being released.

Shulman is of the opinion that the EEOC will allow employers to institute mandatory vaccination as “now that the EEOC has said COVID-19 does pose a direct threat to the health and safety of [employees] and the general public, that employers can have a more stringent mandate for a vaccine,” Schulman also reminds that while the guidelines are yet not out employers must still “consider reasonable accommodations under the ADA and under Title VII.” when it comes to vaccination.

Kevin Troutman, the chair of Fisher Phillips health care practice and a former human resource executive believes that the framework for employers handling the COVID-19 vaccination will look a lot like the flu vaccine. This is because Troutman says that, unless there are state laws blocking it, an employer can require employees to receive a flu vaccination, as long as they also provide exemptions based on medical and religious objections.

Therefore, it seems that one way to limit legal challenges is to allow exemptions for medical and religious reasons. Yet, even when allowing exemptions, challenges can yet still arise. One challenge an employer might face is first having to make the decision on whether a certain worker qualifies for the vaccine exemption. Another complication employers face when allowing exemptions is that they must now decide whether that unvaccinated worker poses an “undue safety burden” on the rest of their workers.

Moreover, when employers require vaccination if an employee submits to that requirement and as a result of the vaccine develops health complication, then that employer will most likely face legal claims. This is one of the major reasons Roberts Duston, a partner at Sual Ewing Arnstein & Lehr LLP believes the opposite of Shulman, and that instead most employers will just strongly encourage vaccination instead of requiring it.

It must also be addressed that recently people have developed negative thoughts towards vaccinations, so much so that it is now a source of fraught political debate. Most experts are in agreement that workers citing ideological reasons for refusing vaccinations are not protected and thus employers have the right to fire them. Troutman also agrees noting that in a federal court, if an employee has a “purely secular” objection to vaccination as opposed to a “sincerely held religious belief” then the employee is not protected under federal law.

Source: Law360

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