With the possibility of a COVID-19 vaccine on the horizon, many employers are starting to ask themselves how they’re going to handle this eventuality. Below are ten considerations for employers to keep in mind from the perspectives of employment law, employee safety and health, and labor-management relations.
#1: Mandatory or Voluntary? Pre-COVID regulatory guidance authorized mandatory vaccine programs, provided that medical and religious accommodations were honored and free from retaliation. (EEOC guidance, OSHA guidance.) With the presumptive public health case for a COVID-19 vaccine being at least as strong as historical vaccines (e.g., seasonal flu, H1N1), one can anticipate that the historical guidance will hold for a COVID-19 vaccine. Vaccines are medical examinations under the ADA and, if they are to be required, must be job-related and consistent with business necessity or justified by a direct threat. Historically, this has meant that flu vaccines can be mandated for employees in a patient care setting where there is interaction with vulnerable populations. Outside this setting, a voluntary program to start may be prudent, with the option to escalate to a mandate in the future. It remains to be seen if the EEOC will say that the COVID vaccines can be mandated on the theory that COVID-19 presents a direct threat in the workplace.
#2: Minimizing Political Distraction. Employees may perceive any employer action or inaction regarding vaccines as politicized. Employees’ varied concerns might be eased by building a scientific, business, and humanitarian case for any course of action. Focusing on the safety of patients, customers, and coworkers–and avoiding political talking points and justifications–can help to legitimize an employer’s plan in the eyes of employees and defend against novel legal challenges and claims. In union workplaces, an employer may have an opportunity to partner with the union to align on messages of safety and other shared areas of concern. Employers will do well to set a tone of apolitical safety and corporate responsibility.
#3: Rooting Out Malingerers, Fraud. Separating bona fide medical and religious accommodations from opportunists and malingerers is important to workforce planning and employee morale. This challenge presents itself whether a vaccine program is mandatory or voluntary. Employees may seek to avoid work either due to a mandate to take a vaccine perceived to be unsafe or being put to work in an environment with unvaccinated colleagues. Employers should anticipate an influx of accommodation requests and proactively train human resources staff to process accommodation requests involving vaccines or working around unvaccinated persons. Informed by existing disability accommodation and leave laws, employers can map out processes for detecting and deterring employee abuse and fraud associated with vaccine programs and, more broadly, returning employees to the workplace. As public health guidance is subject to change as the COVID-19 pandemic evolves, businesses should be aware that accommodation requests relating to COVID-19 and vaccines may also change.
#4: Business Leaders Rolling Up Sleeves. Unlike annual flu vaccine programs of the past, employees may be skeptical (for various reasons) of any COVID-19 vaccine offered by an employer. Business leaders should consider bold demonstrations of personal commitment to any mandatory or voluntary vaccine program, as a way to build employee trust and compliance. A picture or video clip of a business leader rolling up his/her sleeve to get a vaccine may be worth thousands of words. To have the assurance of business leaders participating in the program may put employees at ease, increase voluntary compliance, and reduce objections and disputes.
#5: Potential for Tort or Workers’ Compensation Claims. Employers may face claims of negligence sounding in tort when they decide not to institute vaccination programs; however, a plaintiff’s ability to identify a relevant duty and to demonstrate an employer’s breach of that duty would likely prove difficult. Whether workers’ compensation laws apply to harm and side effects allegedly caused by COVID-19 vaccinations will vary case-by-case and state-by-state. State systems could cover injuries suffered as a result of employees’ reactions to such vaccinations, particularly where employers mandated or strongly encouraged that employees receive those vaccinations. Employers should consider the industries in which their employees work when analyzing this issue, as employees in higher risk jobs may have stronger arguments for compensability.
#6: The Occupational Safety and Health Act. Historically, the Occupational Safety and Health Administration has not mandated employee vaccinations, but has indicated that employers can do so. The whistleblower provision at section 11(c) of the Occupational Safety and Health Act may afford protections to an employee who refuses to be vaccinated under an employer vaccination program because of the reasonable belief that a medical condition may cause a reaction to the vaccine resulting in serious injury or death. Separately, employees may allege that employers without vaccination programs have failed to provide safe and healthy work environments, as required by the OSH Act’s general duty clause at section 5(a)(1).
#7: Watch for Protected Concerted Activity. Both union and non-union employers should be mindful of Section 7 of the National Labor Relations Act, which protects employees’ rights to join together to advance their interests as employees and makes it unlawful for an employer to interfere with or restrain employees in the exercise of those rights. If employees join together to protest an employer’s COVID vaccine program (or lack of a program) and the employer takes adverse action against those employees as a result, it could lead to unfair labor practice charges being filed against the employer with the National Labor Relations Board.
#8: What Does the Collective Bargaining Agreement Say? Unionized employers should examine their collective bargaining agreements to determine the extent of their duty to bargain with the union over vaccine programs. Employers may need to consider whether their management rights clauses should be renegotiated with this in mind. But, even if the CBA gives the employer the right to unilaterally institute such programs, employers may still want to consider at least consulting with the union when developing such programs in order to foster goodwill with the union and to increase employee buy-in.
#9: Mandatory Vaccination Programs Could Provide Unions with New Organizing Opportunities. Non-union employers should consider how instituting a COVID vaccine program might affect their union avoidance strategy. When employees feel as though their employer is not listening to their concerns or adequately communicating with them, they are more likely to turn to labor unions for help. Employers should therefore ask themselves:
Could the positions that the employer takes regarding a COVID vaccine program change employees’ views on the potential benefits of bringing in a union and/or give union organizers more ammunition in their efforts to organize employees?
To what extent is the employer going to consider employee concerns about efficacy, side effects, and/or general fears about or aversions to vaccines, and how is the employer going to communicate with employees about those concerns?
How is the employer going to balance the concerns of employees who resist the vaccine against employees who want all employees in the organization to get vaccinated?
Should the employer consider alternatives, such as the option to choose to wear a face covering or work from home?
#10: Will Certain States Mandate Vaccination? There is a possibility that one or more Governors could issue Executive Orders mandating vaccination, and if they do, any such Executive Orders would also likely contain various carve-outs. The issuance of such Executive Orders will likely be met with lawsuits challenging their legality. What will the Supreme Court say? In 1905, the Court upheld a mandatory vaccination law. What will this Supreme Court do and what should employers do while they wait?