THIS ARTICLE IS BEING REPOSTED BY LIBERTATE INSURANCES JAMES BUSCARINI. THE ORIGINAL CONTENT WAS WRITTEN IN THE FEBRUARY 2021 EDITION OF RISK MANAGEMENT MAGAZINE. ARTICLE WRITTEN BY JODY MCLEOD, ESQUIRE AND GARY PEARCE

As COVID-19 vaccines become more available and companies return to the office, employers may want to protect their workforce by mandating vaccinations. However, it is essential that they keep in mind certain risks and how to mitigate them, including the legal limits of what they can ask of employees.

When approaching mandatory vaccinations for workers, the legal rules are reasonably established. Employers can mandate vaccinations as long as they have processes to deal with exceptions. The key exceptions concern medical disabilities covered by the Americans with Disabilities Act (ADA), and bona fide religious objections covered by Title VII of the Civil Rights Act of 1964. Because a vaccination is not a medical examination, it does not inherently trigger certain aspects of the ADA.  But beware of violating ADA obligations in the course of asking pre-screening questions or securing proof of vaccinations. Unvaccinated employees—particularly those who refuse or are unable to take a vaccine for medical or religious reasons—may be excluded from the workplace if they pose a direct threat, subject to ADA and Title VII ­obligations to pursue a reasonable accommodation. The ADA accommodation standard is somewhat more favorable to the employee than the Title VII standard. Determining whether an unvaccinated employee poses a direct threat requires a fact-specific determination, considering the duration of risk, the nature and severity of potential harm, and the likelihood and imminence of potential harm.

Excluding an employee from a workplace because they pose a direct threat does not automatically mean termination is justified. The employer first needs to determine whether there is a feasible alternative arrangement that would not impose undue hardship, such as remote work. There remains a general duty under the federal Occupational Safety and Health Act (OSHA) to provide a workplace free from serious recognized hazards, and COVID-19 exposure will typically qualify. Of course, organizations that expose the general public to COVID-19 risk being sued.

If a company imposes a vaccination mandate, it must consistently administer exception processes regarding reasonable medical accommodations and religious objections.  It will need to understand what constitutes business necessity, and must be able to identify reasonable accommodations on a fact-specific, individualized basis. The company will need to decide whether to assume the risks and obligations arising from self-administering vaccinations, or instead depend on collecting evidence of third-party administration. Lastly, it will need to minimize the prevalence of medical inquiries—including medical details unexpectedly proffered by the employee—and preserve the confidentiality of any protected information that may thereby be received.

Other potential issues include whether there is a union contract that the company must consider, or whether any state or local laws forbid mandatory vaccination policies.  

Risks of Vaccination Mandates

If an employer requires vaccinations, it must administer the mandate consistently and consider whether the additional risk is justified. If the employer imposes the mandate for only certain categories (e.g., for customer-facing staff but not home-based workers), it will need a rational basis for its determinations. Also, a mandate could bring any adverse reactions into the realm of compensability for workers compensation, and time spent receiving a mandatory vaccine is most likely compensable for purposes of wage and hour compliance. Data privacy and retention of medical records also need to be considered in the record-keeping process as the relevant regulations and laws are quite demanding. If the company provides financial incentives to encourage compliance, income may need to be reported and taxes owed as well.

Changing and Varying Rules

It was not until December 2020 that the Equal Employment Opportunity Commission issued substantial additional guidance regarding COVID-19 obligations under prominent employment laws. As of this writing, OSHA has yet to issue any rules specific to COVID-19, but the Biden administration is expected to issue a broad rule in the coming months. States and municipalities issue executive orders and ordinances at a pace that only specialists can keep up with. Even if all the written rules are known, there is no assurance that they will be administered in alignment with what governed parties might expect. “Guidance” may become a de-facto obligation.

For all these reasons, companies cannot base their protection and recovery program solely on compliance with current legal requirements. Nor can a static “one and done” determination be sufficient. In light of all these issues, duties and uncertainties, companies should determine whether a vaccine mandate is an effective use of their administrative resources.

Business Expectations

Requiring vaccinations does not mean employers can forego the rest of their COVID-19 management protocol. Employers need to keep in mind that there is no proof that vaccinated people cannot transmit the virus to others, the vaccination seems likely to be less than 100% effective, and some people either will be unable to get the vaccine or at least will not yet have received it. Worry about a new pandemic episode will persist for years.

Many employees likely regard safety as the highest organizational priority and will look to their employer to provide reliable information about COVID-19 risk management. Failure by the organization to respect these new expectations could trigger negative social media reactions, unwanted attention from plaintiffs’ attorneys, and difficulty attracting and retaining valuable talent. While this may be a threat to some managers, it is an unprecedented opportunity to strengthen the bond of trust between employee and employer. 

As a practical matter, legal regulations tend to react to changing circumstances.  This makes it likely that any rescinding of temporary standards will occur in a somewhat tardy fashion. To date, the volume of litigation related to COVID-19 has been less than feared. However, do not take too much comfort in this. Courts have been shut down, causal connections are likely to be better understood as experience accumulates, and plaintiffs’ attorneys may surmise that juries will be more sympathetic after the worst of the crisis has passed. 

Employees Who Refuse

Surveys show that a significant portion of the population would choose not to take a COVID-19 vaccine. Some may eventually be persuaded, while others have deeper objections. Some may be uncomfortable as long as deployment is under emergency use authorizations. This unease reinforces the need to be collaborative in pandemic management and transition planning, and to communicate the reasoning behind critical decisions or policies.

The entire workforce will never agree on how best to emerge from the pandemic. Although communication is important and stakeholder feedback is necessary, securing unanimity is unrealistic. On the other hand, if a significant number of workers refuse to accept a vaccine, even in the face of an employer mandate, is the organization prepared to redeploy or replace these workers?

There is no risk-free path to a post-COVID environment. Employers must continuously assess conditions and be prepared to act promptly despite incomplete information, changing circumstances and inherent uncertainties.