Jennifer Barna and Nathaniel M. Glasser, attorneys in the Employment, Labor & Workforce Management practice, co-authored an article in Workforce, titled “A COVID-19 Vaccine Sets the Stage for the Next Set of Workplace Challenges.”
Following is an excerpt:
Since the early days of the COVID-19 pandemic in the United States and abroad, there has been palpable anticipation for news of a safe and effective COVID-19 vaccine.
For months, many employers and employees have had to adapt to one change after another, and it is understandable to perceive the eventual availability of a COVID-19 vaccine as the light at the end the tunnel. Once we do reach the vaccine milestone, however, employers are likely to face yet another set of challenges, ranging from whether they can (or will want to) mandate all or some employees to get a COVID-19 vaccine, to what liability may run to an employer that mandates vaccination, and even whether the Occupational Safety and Health Administration could require employers to establish a vaccine program.
While uncommon, mandatory vaccination policies are not new. Many health care employers have implemented mandatory flu vaccination programs to protect staff and patients.
The size and scope of the pandemic, coupled with the desire to swiftly return employees to the physical workplace, means that more employers across various industries will likely consider mandating that their employees receive a COVID-19 vaccine when one is available. Employers need to stay ahead of workplace COVID-19 vaccine issues with awareness and planning, so they can adapt their policies to meet the moment when a vaccine is approved and becomes available. Here are some common questions employers and HR leaders should be prepared to answer in considering COVID-19 vaccination programs.
- Q. Can (or should) employers require employees to receive the vaccine? If so, how should employers respond to employee objections about vaccination?
- Q. What is the potential liability if an employer requires the vaccine and the vaccine later causes health problems?
- Q. What position might OSHA take regarding employers and COVID-19 vaccinations?
- Q. When should employers start discussing how to address any eventual COVID-19 vaccine workplace issues? …
Employers that do decide to implement a mandatory COVID-19 vaccination program should:
- Be prepared to engage in the interactive process and provide reasonable accommodations to employees who object to vaccination due to a disability or sincerely held religious belief.
- For those employees who object to vaccination on disability or religious grounds:
- Ensure that an employee’s refusal to be vaccinated originates from a covered disability or sincerely held religious belief (understanding that employers’ challenges to claims of sincerely held religious beliefs have been heavily scrutinized by the courts).
- Consider the nature of the employee’s position, as courts are more likely to require an alternative accommodation for employees that do not frequently interact with the public, and accommodations may take the form of telework, wearing of face coverings or the transfer to a non-frontline position.
- Be aware of the possibility that employees who suffer side effects from the vaccination may seek to hold employers liable.
There are a wide scope of concerns facing employers as they consider COVID-19 vaccination programs, but with proper preparation and in-depth research, employers can move forward into a new era of work with a concrete plan ensuring the maximum level of safety and concern for their workforce.