Protecting the health and safety of employees is a high priority for most employers. Every year, as flu season approaches, many consider adopting a mandatory vaccine policy to help prevent the spread of the flu in the workplace. And now more than ever, in the midst of the COVID-19 pandemic, this issue is top of mind for both employers and employees as the world awaits news of an approved vaccine for the SARS-CoV-2 virus. While employers may view that future vaccine as the linchpin in their plans to resume pre-COVID workplace protocols, simply mandating it for employees may not be feasible.
Understandably, some people are reluctant to expose themselves to the potentially harmful side effects of a new vaccine, particularly one developed on the fast track. In a recent poll on this subject, fewer than half said that they would agree to get a new COVID vaccine; one-fourth flatly refused; and almost a third were uncertain. Coupling this concern with the fact that several vaccine trials were recently paused due to serious side effects, employee reluctance may well increase, even if an FDA-approved vaccine does become available later this year or in 2021.
Obstacles to a Mandatory Vaccine Policy
Employee reluctance (and outright refusal) to submit to a vaccination is often based upon legitimate medical concerns or religious grounds. When an employee cites medical reasons, the Americans with Disabilities Act (ADA) is implicated, resulting in a compulsory dialogue about appropriate accommodations. Similarly, religious-based exemptions to vaccinations are recognized in 48 states in the U.S., even though such exemptions are not a constitutionally-protected right. Some states’ immunization laws include exemptions for philosophical reasons; and while these laws most often come into play with respect to childhood vaccines, employers considering mandatory vaccines for employees should check for applicable state laws on point.
Other potential obstacles are the protections afforded to employees under Section 7 of the National Labor Relations Act (NLRA) regarding protected concerted activity. If, for example, a group of employees join together to protest a mandatory vaccine program and the employer takes adverse action against them, those employees may have a legal remedy under the NLRA. Also, employers operating in unionized workplaces should first check their collective bargaining agreements to determine whether and to what extent they have a duty to bargain with the union before implementing a vaccine program. Finally, employers may be liable under applicable worker’s compensation laws if an employee has an adverse reaction to an employer-mandated vaccination.
Key Considerations for Employers
Mandatory vaccine policies are common in certain industries such as healthcare (hospitals, clinics, care homes) where employees interact frequently with vulnerable populations. However, outside of these settings, it is less likely that mandatory vaccine policies will be upheld as reasonable, unless the employer can demonstrate that the vaccine is job-related, consistent with business necessity or otherwise justified by a direct threat.
Given the global impact of the COVID pandemic, it is possible that, if/when a COVID vaccine is approved and made widely available, one or more states (through either legislation or a governor's executive order) may mandate the vaccine for residents (likely with some limited exceptions).
In the absence of such government action, employers should consider the following factors when contemplating the adoption of a vaccination policy (whether for COVID or annual flu shots):
• Is a mandatory vaccine policy really necessary for the company's business operations? Would a voluntary, company-sponsored vaccination program be sufficiently effective and less likely to inadvertently create new employee relations problems?
• Are other less physically-intrusive options available? (e.g., implementing a remote work model; increasing the physical space between employees; providing masks, tissues and antiseptic wipes; adopting a regular deep cleaning regimen; installing virus-killing lights, etc.)
• If less-intrusive measures are not feasible, how will you handle the inevitable refusals and requests for accommodations? Employers should prepare separate exemption request forms for medical and religious exemptions and separate certification forms for the employees' doctors or religious leaders. Likewise, they should be prepared to offer potential accommodations (e.g., masks, remote work, etc.)
• When announcing a vaccine policy, employers are advised to “sell, don't tell.” In other words, persuasion may be more effective than duress, and the desired compliance can probably be achieved by making the vaccine less onerous and more desirable. In addition to focusing on the legitimate business reasons for the program, employers might offer no-cost vaccines, on-site if possible, and have company leadership roll up their sleeves first to help allay employee anxiety about receiving the vaccine.
If you are interested in adopting a voluntary or mandatory vaccination policy, or have specific questions about legal issues related to such a program in your industry, please contact Trish Lantzy at email@example.com or 804-683-1737.
A member of our Washington D.C.-based team, Patricia Lantzy is a highly skilled labor and employment attorney with 25 years of experience. Trish works with a wide range of clients, from individual executives and small businesses to the Fortune 500, on employment-related issues across the employee lifecycle, including recruiting, hiring, workplace harmony and leave issues, performance and discipline/discharge, corporate reorganizations and reductions in force.
 With COVID recovery rates ranging between 94-99% (per the latest CDC statistics), and with hospitalization and death rates continuing to fall, it may be difficult for most employers outside the health care sector to prove that COVID presents a direct threat to employees outside the highest-risk groups.
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