Many of you have been asking whether you can make the COVID-19 vaccination mandatory for your employees now that it is starting to become available. In most states, employees within our industry will be included in the first tier of recipients. But what does this mean, given that some polls suggest 40% of the population wouldn’t voluntarily get vaccinated? Can we require employees to get vaccinated?
To answer those questions, Littler has published a 29 page-white paper. The Readers Digest version – along with some additional thoughts – are below. We covered this topic during the December 15 virtual home care and hospice presentation with Bill Dombi of the National Association of Home Care & Hospice. If you have not yet done so, you can register to watch the event here.
- We recommend waiting before taking a firm position on “mandatory” vaccinations.
o First, you must understand the actual vaccine that is potentially available to your workforce. Are there any exclusions in the emergency use authorizations on who is eligible for the vaccine from a medical perspective (i.e., people with certain preexisting conditions)? You wouldn’t want to make it mandatory for them to get vaccinated.
o We also need to know more about the side effects and how effective the vaccines are in practical use. You could see the potential argument if you made employees choose between their job and a brand new vaccine that may have negative side effects and not be as effective as initially thought.
o Waiting will also give you time to see how your workforce is reacting to the new vaccines. Are they enthusiastic or reticent?
o Similarly, it is good to know how the rest of the industry will respond. There is a safety in numbers, particularly when we know plaintiff attorneys are circling on this issue.
o Also, maybe the government will make the call for you. As you know, some states require flu shots for healthcare workers, so it is possible certain state governments could treat a COVID-19 vaccination the same way.
- It is important to note the quotation marks I used above. I did that because employers really cannot make vaccinations completely mandatory. They must always allow ex
ceptions based on health and religious beliefs.
o The EEOC already has stated that employees may be entitled to an exemption from a mandatory vaccination requirement based on an ADA disability that prevents them from taking the influenza vaccine, and there is no reason to believe that the EEOC would stray from this view when dealing with a vaccine for COVID-19. (Note that a similar analysis would apply to pregnant employees.)
o Under Title VII of the Civil Rights Act of 1964, once an employer receives notice that an employee’s sincerely held religious belief, practice, or observance prevents him or her from taking the vaccine, the employer must provide a reasonable accommodation unless it would pose an undue hardship as defined by Title VII. This is a tricky area – you would want to talk to an attorney before terminating someone who refuses to vaccinate on religious grounds.
- A few other points:
o Mandatory vaccinations may lead to potential workers’ compensation claims from employees who suffer an adverse reaction to a potential vaccine.
o An employer that does not adopt measures to prevent the spread of the coronavirus at work adequately may face liability for failure to comply with its general duty to provide a safe workplace.
o It is likely that robust workplace safety policies, even in the absence of an employer vaccination mandate, can meet this obligation, particularly based on the anticipated level of uncertainty regarding the effectiveness and/or potential side effects of a vaccine.
Given all of this, let me offer a few suggestions some of our clients are using to encourage employees to become vaccinated:
· Pay employees who get vaccinated a one-time bonus (probably the best option of the three).
· Limit shifts for those who do not get vaccinated to nonclient facing roles, citing patient safety concerns.
· Require employees who do not get vaccinated to use PTO concurrent with any sick leave for quarantining.
As a final note, you also might be interested to know that teachers are in Phase 1B of the CDC/ACIP vaccination plan, which could start within the month. This is important to the extent you have employees who cannot work because their kids are home and unable to attend school in person. We hope this means we will be returning to regular order in the near future.
William Vail brings a wealth of private practice and in-house experience to every matter he handles. For nearly seven years, he was lead employment counsel two separate divisions of largest post-acute health care provider in the nation (the home health, hospice and community care division and nursing center division). He later was lead employment and litigation counsel for the largest home health and hospice provider in the nation following a corporate reorganization. In addition to a wide variety of employment issues, Will is familiar with False Claims Act, professional liability and general liability matters related to healthcare operations. 
