Employers can require their employees to take a vaccine against the novel coronavirus, but the question many are struggling with is should they force the issue.
“The easy way out is to strongly encourage it but don’t mandate it,” said Christine Samsel, an employment law attorney at Brownstein Hyatt Farber Schreck in Denver.
Employers have a duty to ensure a safe working environment and that no individual posses a “direct threat to the health or safety” of others in the workplace. They could be held liable if they let their guard down and an outbreak results.
The Equal Employment Opportunity Commission recently clarified that employers can make vaccination for COVID-19 mandatory, with limited exceptions based on sincerely-held religious beliefs or to accommodate a health concern, say an allergy to what is in the vaccine.
While many people can’t wait to get immunized, a sizeable share of the population remains hesitant or opposed. Only 55% of adults with private health insurance said they would be willing to take a COVID-19 vaccine, with 24% opposed, according to a survey last month from the Employee Benefit Research Institute
Another survey from the Pew Research Center found nearly four in 10 adults opposed to taking a COVID-19 vaccine and Gallup puts the U.S. acceptance rate at only 63%, assuming shots are free and easy to obtain.
Granted, people will get more comfortable as more doses are administered with minimal side effects and they prove their protective powers. But even then, some people will still pass. Employers could find themselves balancing a worker’s right to choose against the need to protect the health of other employees and customers.
“It is now clear that an employer may require proof of vaccination without implicating the ADA, Title VII or Genetic Information Nondiscrimination Act. On its surface, this makes it simpler for employers to mandate vaccinations and require that employees provide proof of vaccination,” said Elizabeth Wylie, a partner at Snell & Wilmer in Denver.
But she said mandating vaccinations will be burdensome. Exemptions must be made because of disability or religious beliefs. Workers who refuse to provide proof of vaccination can’t be automatically fired. Uncertainties remain around the vaccine’s efficacy, the longevity of the protection provided, side effects and availability. Plus there are broader issues of employee morale and retention if the issue is forced.
“Most of my clients are keeping it on a voluntary basis while taking steps to encourage employees to take it,” Wylie said.
Not making vaccinations mandatory raises a potential liability for outbreaks. Although workers infected on the job should be covered under workers’ compensation policies, what happens if they bring the virus home and infect a spouse or elderly parent?
The Denver-based Employers Council is advising its members to study their workplaces, looking at specific job duties and the risks of exposure of each before crafting a vaccine policy.
“Are they frontline and exposed, are they a danger to others if they are not vaccinated?” asked Tina Harkness, director of the council’s Northern Regional Office. “It is about balancing the level of threat and individual interest. They are tough questions.”
Harkness said if proof of vaccination is made mandatory, the requirement should be consistently applied except for the legally permitted exceptions.
Samsel adds employers also need to be careful not to single out workers they might view as more vulnerable to COVID-19 for vaccination, say those over age 55 or who are overweight. And they need to be flexible as things shift.
“Once the vaccine becomes more readily available, there will be decisions and cases in the context of the first wave of folks who are getting the vaccine. There will be some development in the law and in the guidance,” Samsel said.
Even under a more flexible approach, policies still need to be put in place to accommodate those who aren’t vaccinated. They could be required to work remotely until cases reach a very low level or to wear masks even after public health orders requiring them are loosened, Harkness said.
Liability concerns also play the other way. COVID-19 vaccines were developed quickly under emergency use authorizations and some groups weren’t tested, like pregnant women. Although the approved vaccines were deemed safe and effective in trials, they have triggered a rare handful of severe allergic reactions.
“Given the new nature of the vaccine and the way it has been rushed through quickly, that creates additional issues,” Samsel said.
Republicans had pushed for broad business liability protections related to COVID-19, but Congress stripped that out of the $900 billion aid package it just passed.
Pfizer and Moderna vaccines just started rolling out in Colorado to health care workers, but it could be months before doses are available for the working-age population in good health. Most Colorado employers haven’t drafted plans yet, but employment law experts suggest they should be thinking about the topic.
A survey from the Colorado Chamber of Commerce released on Dec. 15 found only 3 in 10 businesses had started developing a vaccination policy for employees or customers. Most were leaning toward encouraging but not requiring vaccinations.
Employment law attorneys agreed that the best route for employers is to have a third-party administer the vaccine rather than providing it in-house, because of the pre-screening questions and medical information an employer would have to gather.
If health plans aren’t covering the cost of shots, employers who require them should pay for them, as well as the time required to get them, Harkness advises.
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