A COVID vaccine is on the way. Will employers require their workers get the shot?
Vaccines to battle an out-of-control COVID-19 pandemic are in arms in Britain and have been cleared for emergency use in the U.S. Doses could come to Sacramento as soon as Monday.
But the new drugs pose a question: Can employers require workers to get vaccinated?
Experts who spoke with The Sacramento Bee this week say it is too soon to know for sure. Employers are still waiting for guidance from federal regulators in Washington and state and local agencies here at home.
But they also say employers should already be planning for the day when a vaccine is widely available and what that will mean for their workplaces with the maze of issues that employee vaccinations entail.
“Employers will have to navigate this,” said Emily Santanelli, vice president for professional development at Sacramento Area Human Resources Association. “It won’t be an easy thing to navigate. Employers would be wise to consult with an employment law attorney.
“There’s no real trend or best practice so employers need to start getting a finger on the pulse of what’s going on. With national, state and local laws, there should be a trusted adviser or employment law attorney to run policies through.”
Employers, Santanelli said, “will have to look at a whole array of things” from guidance to legislation to local health recommendations.
“Even large companies aren’t coming out with any standards yet” on a worker vaccination policy, Santanelli said. She said she expects to see some guidance come out of the federal Equal Employment Opportunity Commission in the next 90 days.
“(Employers) would be wise to talk now about what route they want to go,” Santanelli said. “It would be wise to start discussing that on a leadership level.”
Employers may believe they can act. In an article this week for the trade association Society for Human Resource Management, employment law experts said some companies will be able to press their case for a vaccine requirement because the virus remains uncontrolled and so easily spread at the worksite.
“The more likely it is that nonvaccinated employees put customers, fellow employees or the general public at risk, the more compelling the case will be for a vaccination mandate,” said Charlevoix, Mich.-based attorney Jody McLeod.
The EEOC is taking a hard look at the Americans with Disabilities Act to see whether any vaccine mandate would be allowed under the statute, Karla Grossenbacher, a partner at the employment law firm Seyfarth Shaw, in Washington, D.C., told The Bee via email. The ADA and its accompanying regulations contain strict restrictions on an employer’s ability to require employees to undergo a medical examination, Grossenbacher said.
Because a vaccine is a medical examination under the ADA, any vaccine requirement must be job-related and consistent with business necessity. But a requirement may also be necessary because of the threat posed by an unvaccinated employee in the workplace, Grossenbacher said.
Vaccination mandates aren’t a new idea. Many healthcare workers must receive certain vaccinations as a condition of their employment, the National Law Review points out; and both EEOC and OSHA, the Occupational Safety and Health Administration, have permitted mandatory flu vaccinations, most recently during 2009’s H1N1 pandemic.
“With a look at past precedent — H1N1 — we can conclude that an employer will be able to require a vaccination as a condition of employment,” said Lukas Clary, an employment law attorney at Sacramento firm Weintraub Tobin.
But, Clary added, the issue isn’t that straight forward. If the workers are represented by a union, a COVID-19 vaccination program may have to be negotiated with the employees’ bargaining unit.
Employers must also consider an employee’s religious beliefs that preclude them from being vaccinated or a medical reason for not taking a vaccine.
Liability is also a concern, Clary said.
Even if businesses are able to require vaccinations, “It may not be what they want to do,” Clary said. “If someone had an adverse reaction (to the vaccine), it could trigger a workers’ compensation claim.”
Clary’s advice: “Encourage but stop short of requiring it. That may be the safe approach for now.”
Wisconsin-based attorney Zachary J. Flood cautioned as much writing this week in The National Law Review.
Flood said employers subject to collective bargaining agreements should evaluate any limitations before requiring vaccinations: “In light of the pandemic, caution should be exercised in unilaterally implementing sweeping workplace policies.”
Flood said employers should also consider whether voluntary vaccination programs, remote work, physical distancing and face coverings can achieve similar aims in keeping the workplace safe, adding that a mandatory vaccination program “might have significant ramifications on employee retention and recruitment.”
Some companies do choose instead to offer incentives including cash bonuses to those who voluntarily vaccinate, said Santanelli of SAHRA. Employers know that a vaccination mandate may be tricky territory for a company.
“I don’t predict businesses coming down with a heavy hammer saying that you have to get (vaccinated),” Santanelli said.
“It’s going to be a difficult thing to navigate,” she continued. “If you require it, employees may quit or you lose talent. Depending on what area you work in, it can be difficult, even in a pandemic, to find talent. It’s a tightrope that employers will have to walk. Employers are nervous about making the wrong decision.”
This story was originally published December 11, 2020 at 1:41 PM with the headline "A COVID vaccine is on the way. Will employers require their workers get the shot?."
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