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With COVID-19 Vaccines Finally Arriving, Employers Must Ask and Answer Difficult Questions

December 18, 2020

This week marked a turning point in the COVID-19 Pandemic: the arrival of the first vaccines.  Now that the vaccines are finally coming (through much of 2021), employers have many questions to ask themselves and will have many questions to answer from employees. On Wednesday, December 16, 2020, the Equal Employment Opportunity Commission started to answer some of the emerging questions with an update to its “What You Should Know…” about COVID-19 website.  In doing so, it provided new guidance on how employers can implement vaccination programs without running afoul of existing laws.  The key takeaways from the guidance are as follows.

Q:  Can we mandate that our employees get vaccinated?

Although the EEOC guidance does not explicitly answer that question, it is clear from the guidance that mandatory vaccination programs are permissible under federal law.  When and how employers can mandate vaccinations will depend on a variety of factors, including the availability of the vaccine.  Employers should be mindful that the current COVID-19 vaccine is approved for emergency use; full approval is expected in early 2021.   

Q:  If we mandate vaccinations, what things should we consider?

There are numerous legal issues that can arise through a mandatory vaccination program, and precautions employers should take.  For example,

  • If an employer requires the vaccine, it must ensure that pre-screening questions are “job-related and consistent with business necessity.”  If an employer has a voluntary vaccination program, any answers to pre-screening, disability-related questions must also be voluntary.
  • The ADA requires employers to keep any employee medical information obtained in the course of the vaccination program confidential, and employers must be mindful of other relevant laws, such as Genetic Information Nondiscrimination Act. 
  • Whether to use a third party to administer the vaccine within the workplace, or whether employees will be allowed to obtain it on their own and then provide proof of vaccination.  There may be legal and practical considerations for each approach. 

Q:  What if an employee refuses to get vaccinated?

The EEOC guidance makes clear that employers must discuss whether reasonable accommodations are available to employees who cannot get the vaccine due to a disability or due to religious beliefs. Employers must also determine if a disabled individual who cannot be vaccinated would be a “direct threat” to the workplace by assessing (1) the duration of the risk; (2) the nature and severity of the potential harm; (3) the likelihood that the potential harm will occur; and (4) the imminence of the potential harm.  Ultimately, if no reasonable accommodation is available (e.g. remote work), and the individual’s presence would constitute a “direct threat” to the workplace, the EEOC guidance states that the individual’s employment can be terminated.  Such decisions can be complicated, however, and employers may want to consult their legal counsel before taking such action.

Q:  Given those considerations, should our business mandate vaccinations for employees?

Not all employers are alike, and the answer to this question may be a business judgment that turns on a number of factors, including the type of industry the company is in, whether employees can work remotely, whether the employer is unionized, whether the employer is prepared to manage such a program, and how such policy will be received by employees. Some employers may decide to implement the same approach that they use for seasonal flu -- strong encouragement, but no mandates.  Other employers have already decided that the time is now right, and the risk is too great, not to require employees to take preventative measures such as getting a flu or COVID-19 vaccine.

Vaccine 2021: Are You Prepared?

Shipman lawyers are addressing many of these questions already with employers, including hospitals, essential workplaces, manufacturers, schools, and offices.  Our multi-disciplinary COVID-19 Vaccine Working Group is available to address not just the employment law issues, but privacy concerns, litigation risks, health and safety, and industry-specific areas.  Members of our team include Julie FayAlfredo FernándezGabe Jiran, Anne Littlefield, Jill O’Toole, William Roberts, and Daniel A. Schwartz, among others.  Now that guidance has been forthcoming from the government, we are planning a webinar for a date in January 2021 to address many of these questions.  Save the date and watch for a registration e-mail after the holidays.  We are also hosting a webinar as part of our manufacturing series “Emerging Compliance and Legal Threats to Manufacturers” on January 27, 2021 at noon, where panelists including Jane Goundrey, General Counsel of ORAFOL Americas, Inc. and Kate McGinnes Collins, General Counsel, MB Aerospace will discuss vaccination issues.

Questions? Contact one of the members of our working group:

Julie Fay, School Law

Alfredo Fernández, Health and Safety

Gabe Jiran, Employment Law

Anne Littlefield, General Counsel

Jill O'Toole, Litigation

William Roberts, Data Privacy

Dan Schwartz, Employment Law

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