Managing Workplace COVID-19 Vaccine Policies

This post first appeared on Risk Management Magazine. Read the original article.

As COVID-19 vaccines become more available and companies
return to the office, employers may want to protect their workforce by
mandating vaccinations. However, it is essential that they keep in mind certain
risks and how to mitigate them, including the legal limits of what they can ask
of employees.

When approaching mandatory vaccinations for workers, the
legal rules are reasonably established. Employers can mandate vaccinations as
long as they have processes to deal with exceptions. The key exceptions concern
medical disabilities covered by the Americans with Disabilities Act (ADA), and
bona fide religious objections covered by Title VII of the Civil Rights Act of
1964. Because a vaccination is not a medical examination, it does not
inherently trigger certain aspects of the ADA. 
But beware of violating ADA obligations in the course of asking pre-screening
questions or securing proof of vaccinations. Unvaccinated
employees—particularly those who refuse or are unable to take a vaccine for
medical or religious reasons—may be excluded from the workplace if they pose a
direct threat, subject to ADA and Title VII ­obligations to pursue a reasonable
accommodation. The ADA accommodation standard is somewhat more favorable to the
employee than the Title VII standard. Determining whether an unvaccinated
employee poses a direct threat requires a fact-specific determination,
considering the duration of risk, the nature and severity of potential harm,
and the likelihood and imminence of potential harm.

Excluding an employee from a workplace because they pose a
direct threat does not automatically mean termination is justified. The
employer first needs to determine whether there is a feasible alternative
arrangement that would not impose undue hardship, such as remote work. There
remains a general duty under the federal Occupational Safety and Health Act
(OSHA) to provide a workplace free from serious recognized hazards, and
COVID-19 exposure will typically qualify. Of course, organizations that expose
the general public to COVID-19 risk being sued.

If a company imposes a vaccination mandate, it must
consistently administer exception processes regarding reasonable medical
accommodations and religious objections. 
It will need to understand what constitutes business necessity, and must
be able to identify reasonable accommodations on a fact-specific,
individualized basis. The company will need to decide whether to assume the
risks and obligations arising from self-administering vaccinations, or instead
depend on collecting evidence of third-party administration. Lastly, it will
need to minimize the prevalence of medical inquiries—including medical details
unexpectedly proffered by the employee—and preserve the confidentiality of any
protected information that may thereby be received.

Other potential issues include whether there is a union
contract that the company must consider, or whether any state or local laws
forbid mandatory vaccination policies. 

Risks of Vaccination Mandates

If an employer requires vaccinations, it must administer the
mandate consistently and consider whether the additional risk is justified. If
the employer imposes the mandate for only certain categories (e.g., for
customer-facing staff but not home-based workers), it will need a rational
basis for its determinations. Also, a mandate could bring any adverse reactions
into the realm of compensability for workers compensation, and time spent
receiving a mandatory vaccine is most likely compensable for purposes of wage
and hour compliance. Data privacy and retention of medical records also need to
be considered in the record-keeping process as the relevant regulations and
laws are quite demanding. If the company provides financial incentives to
encourage compliance, income may need to be reported and taxes owed as well.

Changing and Varying Rules

It was not until December 2020 that the Equal Employment
Opportunity Commission issued substantial additional guidance regarding
COVID-19 obligations under prominent employment laws. As of this writing, OSHA
has yet to issue any rules specific to COVID-19, but the Biden administration
is expected to issue a broad rule in the coming months. States and
municipalities issue executive orders and ordinances at a pace that only
specialists can keep up with. Even if all the written rules are known, there is
no assurance that they will be administered in alignment with what governed
parties might expect. “Guidance” may become a de-facto obligation.

For all these reasons, companies cannot base their protection
and recovery program solely on compliance with current legal requirements. Nor
can a static “one and done” determination be sufficient. In light of all these
issues, duties and uncertainties, companies should determine whether a vaccine
mandate is an effective use of their administrative resources.

Business Expectations

Requiring vaccinations does not mean employers can forego
the rest of their COVID-19 management protocol. Employers need to keep in mind
that there is no proof that vaccinated people cannot transmit the virus to
others, the vaccination seems likely to be less than 100% effective, and some
people either will be unable to get the vaccine or at least will not yet have
received it. Worry about a new pandemic episode will persist for years.

Many employees likely regard safety as the highest
organizational priority and will look to their employer to provide reliable
information about COVID-19 risk management. Failure by the organization to
respect these new expectations could trigger negative social media reactions,
unwanted attention from plaintiffs’ attorneys, and difficulty attracting and
retaining valuable talent. While this may be a threat to some managers, it is
an unprecedented opportunity to strengthen the bond of trust between employee and
employer.

As a practical matter, legal regulations tend to react to
changing circumstances.  This makes it
likely that any rescinding of temporary standards will occur in a somewhat
tardy fashion. To date, the volume of litigation related to COVID-19 has been
less than feared. However, do not take too much comfort in this. Courts have
been shut down, causal connections are likely to be better understood as
experience accumulates, and plaintiffs’ attorneys may surmise that juries will
be more sympathetic after the worst of the crisis has passed.

Employees Who Refuse

Surveys show that a significant portion of the population
would choose not to take a COVID-19 vaccine. Some may eventually be persuaded,
while others have deeper objections. Some may be uncomfortable as long as
deployment is under emergency use authorizations. This unease reinforces the
need to be collaborative in pandemic management and transition planning, and to
communicate the reasoning behind critical decisions or policies.

The entire workforce will never agree on how best to emerge
from the pandemic. Although communication is important and stakeholder feedback
is necessary, securing unanimity is unrealistic. On the other hand, if a
significant number of workers refuse to accept a vaccine, even in the face of
an employer mandate, is the organization prepared to redeploy or replace these
workers?

There is no risk-free path to a post-COVID environment.
Employers must continuously assess conditions and be prepared to act promptly
despite incomplete information, changing circumstances and inherent
uncertainties.

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