The recent news about the imminent release of a safe and effective vaccine for COVID-19 is like catching a glimpse of blue sky between distant clouds in the midst of a driving thunderstorm. Inevitably, however, practical questions arise, in particular for employers.
“Although much remains speculative, employers can look to the regulation of current vaccines as the basis for their preliminary planning,” say attorneys for the law firm of Morgan Lewis & Bockius. “Those who begin to plan now will be better positioned to navigate the various risks and issues involved.”
It will be some time next year before the vaccine will become available to the general population. Among the first to receive it will be frontline healthcare workers who are likely to be exposed to COVID-19 and critical infrastructure workers.
Next in line will be people at increased risk because of their health, including those with underlying medical conditions and older adults, especially those living in nursing homes, convalescent and similar facilities. But eventually the vaccine will become more generally available throughout the rest of the population.
When it comes to vaccinating the workforce, Sherelle Wu, an attorney for the law firm of Bowditch & Dewey, points out that the Occupational Safety and Health Administration (OSHA) permits employers to establish what are considered legitimate health and safety policies so long as they are job-related and consistent with business necessity.
OSHA rules exist
OSHA has not yet provided guidance on a future COVID-19 vaccine, but in a 2009 letter of interpretation, OSHA said employers who wished to require employees to receive a seasonal flu vaccine could do so, subject to certain exceptions, according to the Morgan Lewis attorneys.
OSHA stressed that employees need to be properly informed of the benefits of the vaccinations. It clarified that if employees refuse the vaccine due to a reasonable belief that they have a medical condition creating a real danger of serious illness or death (for example, a serious reaction to the vaccine), they may be protected the same way as a whistleblower under the Occupational Safety and Health Act (OSH Act).
In regard to the COVID-19 vaccine, there is some speculation in the legal community that OSHA may use the OSH Act’s General Duty Clause to issue citations to employers who fail to offer COVID-19 vaccines, the attorneys reveal. As of now, there is no OSHA standard that would mandate employers to offer a COVID-19 vaccine when one becomes available.
Ultimately, the agency’s ability to issue a General Duty Clause citation will depend on a variety of factors, including guidances issued by the Centers for Disease Control and Prevention (CDC) and OSHA itself about use of the vaccine in the workplace. It also will depend on the strength of the employer’s COVID-19 safety and health program and the extent to which it follows other guidances from public health officials.
Alternatively, OSHA is facing substantial political pressure to publish an emergency temporary standard (ETS) covering COVID-19, which also could be used to address the vaccine issue. It is reasonable to expect that issuing an ETS is a step the agency would take sooner rather than later under a new Biden Administration.
Mind the unions’ role
Employers with unionized workforces should be mindful of the National Labor Relations Act (NLRA) and any labor contract obligations, the Morgan Lewis attorneys state. “Requiring COVID-19 vaccinations may be considered a mandatory subject of bargaining that gives rise to a duty to bargain prior to implementation, unless there’s an existing labor contract that provides for management’s right to implement such a decision without bargaining.”
Employers also should consider whether any labor contract language would foreclose mandatory vaccination. If there is no collective bargaining agreement in effect, the employer may be required to bargain to agreement or impasse before implementing a mandatory vaccination policy, depending on the circumstances and the industry.
Even in a nonunionized setting, there are potential NLRA implications. Specifically, Section 7 of that law grants employees the right to engage in what are considered protected activities, that is “concerted activities” for the purpose of “mutual aid and protection,” which commonly means any issues regarding wages and working conditions.
The attorneys hold that this provision may protect the rights of employees who engage in concerted activities with regard to a mandatory workplace vaccine. Examples of this include protesting against a mandatory vaccination policy, organized office communications or flyers among coworkers concerning a vaccination mandate, or simply coworker discussions about the vaccine.
State and local duties
Don’t forget to take into account any state laws that may play a role regarding regulation of a COVID-19 vaccine response by employers, as well as regulation by local public health authorities, who have become more prominent as regulators since the pandemic began.
For example, nearly all states require certain healthcare facilities to mandate or offer various immunizations, such as seasonal influenza, Hepatitis B, and Measles, Mumps and Rubella (MMR) to their workers.
Some states strictly limit the reasons a vaccination may be declined. For example, Illinois provides that “general philosophical or moral reluctance to influenza vaccinations does not provide basis for an exemption” to healthcare employees. However, a significant number of other states—Alabama, Kentucky, Massachusetts, North Carolina, Pennsylvania and Tennessee—permit an employee to decline the influenza vaccination for any reason, so long as the employee was informed of the health risks beforehand.
A handful of other industries—such as drug treatment centers and homeless shelters in California, or childcare facilities in Texas and Rhode Island—may be subject to various vaccine requirements on a state-by-state basis.
Any injury or illness arising after a vaccine approved by the FDA would likely be compensable under many states’ workers’ compensation schemes, the Morgan Lewis attorneys believe. On the other hand, depending on the state law, the workers’ comp exclusivity bar may be defeated when the employer is found to have engaged in gross negligence or reckless conduct.
If employers choose to administer the vaccine, they also could be protected by the Public Readiness and Emergency Preparedness Act (PREP). To obtain this immunity an employer must obtain authorization from the federal government or a state or local health authority in connection with administering vaccinations.
EEOC can weigh in
The Equal Employment Opportunity Commission (EEOC), in a guidance issued in 2009 about pandemic preparedness, explicitly said that employers could require employees to get the flu vaccine so long as employers provided reasonable accommodations to people with disabilities and those with religious objections, as required by the Americans with Disabilities Act (ADA) and the Civil Rights Act, respectively.
An employer is not required to provide a reasonable accommodation under the ADA if none is available, if the reasonable accommodation would present an undue hardship to the employer, or if the employee would pose a direct threat to the health or safety of others that could not be mitigated through the reasonable accommodation.
The reasonable accommodation and undue hardship analyses are individualized assessments that take into account the nature of the employee’s disability, the conditions of the job, the vaccine, and the employer’s circumstances.
“In the case of an employee who cannot be vaccinated, possible accommodations may include telework, protective equipment such as face masks and face shields, increased social distancing measures, or a modified work schedule,” the Morgan Lewis attorneys say. “Of course, the range of potential accommodations may narrow for industries that require close face-to-face interaction with coworkers or the public.”
Title VII of the federal civil rights law spells out that employers requiring vaccination as a condition of employment also must provide reasonable accommodations for employees with a sincerely held religious belief, practice, or observance that prevents them from taking the vaccine.
Keep in mind that this protection does not extend to nonreligious beliefs and would not exempt an employee who objects to vaccination due to political beliefs or for other personal reasons (although such concerns might be protected under state law). For any employer faced with a request for a religious exemption, it is considered reasonable to request supporting information verifying that the basis for the request is, in fact, a sincerely held religious belief.
Separate vaccine guidance?
Although the EEOC has issued a guidance on COVID-19, it is entirely possible that the commission will issue different guidance regarding the vaccine, the Morgan Lewis lawyers say. “Given the fact that the agency has already proclaimed that COVID-19 poses a direct threat to the health and safety of others in the workplace, however, we presume that EEOC will apply the above legal analysis to the COVID-19 vaccine as well.”
In addition, employers are not required to provide accommodations for religious objections if that would pose an undue hardship under Title VII. Also, as it is defined under Title VII, “undue hardship” is a much lower standard than under the ADA and requires only “more than de minimis” cost or burden to the employer.
By contrast, an employer citing “undue hardship” under the ADA must be prepared to show that the proposed accommodation poses a “significant difficulty or expense,” the Morgan Lewis attorneys explain.
Wu adds that relevant factors in considering an “undue hardship” in the vaccination context would include, among other things, the risk to the public due to noncompliance, the availability of an alternate means of infection control such as personal protective equipment (PPE), and the number of employees who actually request an accommodation.
“Certain industries, like healthcare or childcare, may be more likely to find that a vaccine exemption request poses an undue hardship,” she says.
When an employee requests an exemption, both the ADA and Title VII of the civil rights law require that an employer engage in the interactive process to determine effective accommodations. Wu says these possible accommodations include:
• Receiving an alternate formulation of the vaccine.
• Wearing additional PPE such as a face mask while on site.
• Moving the employee’s workstation to a more isolated location.
• Working remotely.
• Granting a temporary leave of absence.
• Temporarily reassigning the employee to a different, less public-facing position or facility. (Note that employers are not obligated to create a position to accommodate an employee.).
Make a Written Policy
“An employer implementing a vaccine mandate should make sure to have an objective written policy based on business necessity (that is, actual job requirements) and apply the policy consistently,” Wu recommends. “The mandate can be narrowly tailored to apply only to specific employees whose job duties involve interaction with the public rather than the employer’s entire workforce.”
Employers also should educate their employees on the benefits of vaccination and the process to request an accommodation, she adds. If your company requires proof of vaccination, make sure to be careful about safeguarding the privacy of employees’ medical information, including but not limited to keeping it separate from personnel files.
Ultimately, employers should base the decision to institute a mandatory flu vaccine policy that can be extended to cover the COVID-19 vaccine, Wu stresses. It should be based on an evaluation of their industry, number of employees and specific workplace situations (for example, the number of employees working fully remotely or interacting with the public).