On Tuesday, December 22, 2020, the first COVID-19 vaccinations became widely available to the public in Illinois. Although global vaccination is expected to take months, if not years, employers can begin planning for a transition to a COVID-free workplace. Below are answers to common questions about the anticipated COVID-19 vaccinations and how to encompass the vaccinations safely and legally into your company policies.
Can employers mandate COVID-19 vaccines for their employees?
Short answer, yes. As COVID-19 is a massive public health threat, employers can require vaccination, as it can be considered a business necessity. Under the American with Disabilities Act (ADA), an employer can have a workplace policy that includes "a requirement that an individual shall not pose a direct threat to the health or safety of individuals in the workplace." An unvaccinated individual could pose that risk to others, including patients or clients of the employer. Further, the ADA permits employers to make medical inquiries and administer medical tests, so vaccines and enforcement fall under that mandate. There is precedent set in prior pandemics, including smallpox and the H1N1 swine flu, when employers were given leeway to require vaccines. Workplaces most vulnerable to infection i.e. hospitals, care homes and schools, are most likely to implement such mandates.
Any workplace that decides to require vaccinantions should have a specific policy regarding the vaccination. The policy should be circulated to employees prior to the implementation for the purpose of notice. An alternative to mandatory vaccination is to offer incentives for employees who voluntarily take the vaccine. Incentives can include paid time off to get the vaccine and other perks.
What are the exceptions?
If workers refuse to be vaccinated due to a disability or sincerely held religious belief, federal law requires employers to provide a reasonable accommodation to that employee. Such an accommodation could be allowing the employee to work remotely, requiring non-vaccinated employees to wear a mask and any other workplace appropriate Personal Protective Equipment (PPE) at all times, or scheduling non-vaccinated employees during low transmission rate periods. Courts traditionally place more weight on the safety of the workplace in times of widespread health emergencies than an individual worker's rights. In 2018, a federal appeals court dismissed a lawsuit from an employee who claimed she was fired due to disability discrimination, as she refused to get a vaccine in fear of an allergic reaction. The court said her "garden variety allergies" do not constitute a disability, and as a healthcare worker, the vaccine was necessary for her to work with patients. If a vaccination requirement screens out a worker with a disability, the employer must show that unvaccinated employee(s) would pose a "direct threat" due to a "significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation." Should any employee refuse the COVID-19 vaccine, we recommend contacting our employment and labor group to ensure the correct procedures are followed and to document the same.
What if employees believe the vaccine is unsafe?
Employees can technically refuse vaccination due to safety concerns under the National Labor Relations Act (NLRA) --even in a non-union setting. The NLRA protects employees who engage in “protected concerted activities” regarding an employer’s vaccination program. Additionally, since the Occupational Safety and Health Administration (OSHA) has yet to offer any guidance on the COVID-19 vaccine, its prior regulations and guidelines indicate OSHA may provide a “whistleblower” type protection to an employee who expressed safety concerns regarding vaccines. The employer should do its best to reasonably accommodate the employee without putting other employees or its customers at risk.
Does the law impact private employers differently than public employers?
Public employees have slightly higher protections in employment than private sector employees, pursuant to civil rights laws directed at state actors. Both public and private sector employers who do not have employment contracts are employed at will and can be fired for any reason that does not relate to the employee’s protected class, whether it be race, gender, national origin, sexual orientation, or disability, depending on the applicable laws. As long as the COVID-19 mandate does not discriminate against an employee for their membership in a protected class and reasonable accommodations are offered or attempted, the vaccination mandate will likely be considered legal.
What about unionized workplaces?
The legality of vaccination mandates is no different for unionized employees, but employers will need the support of labor organizations to make a vaccination program successful, whether it is voluntary or mandatory. Several unions have called for their members to be prioritized for vaccination because they work essential jobs - in food production, grocery stores and schools - that make them vulnerable to infection.
Could employers be held liable if they do not require their workforce to be vaccinated and people get sick?
OSHA requires that employers provide a safe work environment. OSHA has not said what role a COVID-19 vaccine plays in that mandate, but it is anticipated they will issue a report or guidance in the near future. More than likely, OSHA will encourage rather than mandate vaccinations.
How can employers encourage employees to get vaccinated without mandating it?
Employers should develop educational campaigns to communicate the benefits, safety and efficacy of available vaccines. Some employers have asked if they should give bonuses to employees who get vaccinated; however, this strategy could suggest the vaccine is undesirable or dangerous, which is a perception that employers should seek to avoid. Paid time off to get the vaccine with the provision of vaccination documents to the employer is an incentive some employers are considering.