A Pointed Question: Can –and should—companies require COVID vaccinations for their employees?

Twas two weeks before Christmas and all through the country, stressful holiday plans affected all and sundry. As we turned off Netflix from the comfort of our beds, visions of Christmases past danced through our heads. Big family gatherings, workplace potlucks, ugly sweater parties with friends—would we ever return to those treasured times? Would COVID ever end? Lysoled stockings were hung (six feet apart) by the chimney with care, in hopes that a vaccine soon would be there.

When in DC there arose such a clatter, “Pfizer’s vaccine’s been approved!” met with much chatter. “Now Medical Providers, now Essential Workers, now Immuno-compromised & Elderly! On College Students, on Teachers, on You & on Me!” Carriers sprang to their freezer sleds, to their teams told the plan, and Operation Warp Speed really began. As the first doses were administered, you could almost hear “Happy Holidays to all, and to all a brighter New Year!”

As we head into 2021, we’re all hopeful for a better, less-isolated year. For many, a large part of that hope lies with the long-awaited COVID vaccine. But with that beacon of hope comes a slew of questions for employers. How long until my employees have access to it? Can I require all employees to be vaccinated? What do I do if an employee refuses? This blog will take a brief look at the reasoning behind such mandates and the potential pit-falls for employers seeking to enforce them.

The first step in this analysis is recognizing the difference between if an employer can require its employees to vaccinate and if an employer should do so.

CAN YOU

Generally, yes. Vaccines can be required for employees if they are (1) job-related and consistent with business necessity, or (2) justified by a direct threat. Certain exceptions may apply and require a company to excuse an employee from the mandate if his or her genuinely-held religious belief would be violated (Title VII) or if necessary to accommodate that employee’s ADA-covered disability. These are very fact-specific inquiries, and you should consult an attorney to determine if a mandate would be appropriate for your business and identify which exceptions, if any, would apply to your workforce.

Though the COVID vaccine is unique in both its type and speed of release, a look at influenza vaccine policies can be instructive here. According to the CDC, a 2017 survey of adults revealed that less than 45% of those 19 and older received a flu vaccination. That number was somewhat higher for adults with high risk conditions (60%), and for adults 65 and older (68%). With more than 50% of the adult population choosing to skip the shot, some large-scale employers had turned to mandatory influenza vaccination policies in recent years in an effort to protect their employees and customer base.

Essentia Health, based out of Duluth, Minnesota, made national news in 2017 when it was sued after firing approximately fifty employees for failure to obtain an influenza vaccination. This mass firing was the result of a new policy, implemented that year, aimed at increasing the percentage of Essentia employees receiving the vaccine. In a statement to the press, the company’s infectious disease and chief quality and safety officer said “Essentia Health cares for vulnerable patients every day. Immunization significantly minimizes the risk of patients contracting influenza while under our care. What most people don't know is that one can spread the flu even with minimal to no signs of illness. To protect our patients, all of Essentia colleagues, volunteers, students and vendors are required to get a flu shot or receive an exemption." Flash forward three years, and this statement can just as easily (and perhaps even more significantly) apply to the COVID pandemic and recently-released vaccine.

And the movement toward vaccine mandates was not unique to the Land of 10,000 Lakes. Health care providers nationwide have implemented influenza vaccination mandates in the last several years, including Johns Hopkins Health System in Maryland and South Dakota-based Sanford Health. Fifteen states, including Colorado, New Hampshire and Alabama, have even gone so far as to codify the requirement in an effort to keep high-risk populations safe.

So, with vaccine mandates already being somewhat commonplace and with the 75% to 80% vaccination rate public health experts say is required for herd immunity toward COVID to kick in, should your business require its employees to get the COVID vaccine?

SHOULD YOU

There are several factors to consider when making this decision.

Factors in favor of a vaccination policy include:

• Exposure to the Illness: If your employees are in frequent contact with John Q. Public, particularly with children or the elderly, it may be advisable for them to receive the shot. This could easily pertain to daycares, retail service providers, and banks.
• Time-Sensitive Nature of the Work: COVID is highly contagious and can easily wipe out a workforce. And that’s not even considering the implications of post-exposure isolation mandated by local or state governments. If your product or service requires all hands on deck, you may want to consider a policy encouraging employees to vaccinate.

However, there are some major potential pit-falls you should consider before revising your employee handbook:

• Timing is Everything: While a large step forward in the bid to end the pandemic, the December 11, 2020 emergency use authorization (EUA) of the Pfizer vaccine means only that “[t]he totality of the available data provides clear evidence that Pfizer-BioNTech COVID-19 Vaccine may be effective in preventing COVID-19. The data also support that the known and potential benefits outweigh the known and potential risks, supporting the vaccine’s use in millions of people 16 years of age and older, including healthy individuals.” Unlike the flu vaccine, the COVID vaccine has not received full approval from the Food and Drug Administration. Absent FDA approval, many Americans remain leery about the effectiveness and potential side effects of the vaccine. These lingering questions could make a COVID vaccine mandate less likely to survive a challenge in court. Employers may be better off encouraging vaccination as it becomes available to its employees in the phased release, but only moving to a mandate after full FDA approval has been obtained.
• Beware the Chopping Block: Oftentimes in employment situations, it is best to implement a graduated warning system rather than a cut and dry “you’re fired.” Giving employees an opportunity to air grievances and take responsive action can provide the requisite due process.
• Disparate Impact: While requiring all employees across the board to get a flu shot avoids any blatant religious discrimination, it is very possible that certain religions would be disparately impacted by such a requirement. Though employers are only required to accommodate religious exemptions under Title VII if the religious belief is “sincerely held,” it is a very uncomfortable position indeed to be the one deciding which religious exemption requests are “good enough.”
• It Only Takes One: One of the biggest concerns with the EUA Pfizer COVID vaccine is the risk of severe adverse reaction. If an employee receives the shot in compliance with an employer requirement and has a severe reaction or is allergic to the shot, it is possible the employer could be held liable for any damages suffered.
• “Zones” of Enforcement: If you operate a business with multiple departments, a meet-in-the-middle approach could be for those on the front line of public contact—the doctors, salespersons, and bankers—to get the shot. Allow those workers in office environments or, particularly, those that work from home, to skip it. Similarly, employers considering a mandate must take account for the risk of adverse side effects from the vaccine. Any mandate should address time off for the employee to recover from the vaccine and/or for the employee to care for family members who have received it. Consider having your employees get the vaccine in phases so as to avoid your entire staff being in recovery at the same time.

Considering implementing a COVID vaccine mandate at your workplace? Give the attorneys at Goosmann Law Firm a call. A simple review of the proposed policy could save your business a lot of stress down the road!