Since the beginning of the COVID-19 pandemic, we have been awaiting the development of a vaccine. Now that several vaccines have rolled out, the Centers for Disease Control and Prevention (CDC) Director, Dr. Robert Redfield, has approved a COVID-19 vaccine distribution plan. The approved plan prioritizes vaccination for healthcare workers and residents of long-term care facilities. However, the vaccine will become open to the general public soon after. Although this is an excellent step toward combating the virus, the introduction of a vaccine also poses challenges for employers. Employers will have to navigate the inherent legal risks and logistics of requiring or encouraging employees to receive the vaccine. Alltrust Insurance has highlighted the considerations that employers must keep in mind in order to protect their businesses and the benefits of their employees.
COVID-19 Vaccine Guidance & Logistics For Employers
OSHA Guidance
According to the OSHA, employers can require employees to receive a vaccine as long as they properly inform them of the benefits of vaccinations. Additionally, the OHSA states that employees can refuse a vaccination if they have a reasonable belief that they have an underlying health issue that creates a real danger of serious illness or death.
EEOC Guidance
The EEOC, which enforces the Americans with Disabilities Act (ADA) and Title VII of the Civil Rights Act of 1964 (Title VII), has also issued guidance regarding vaccinations and employees. They explained that employees may be entitled to exemption from a mandatory vaccine based on a disability that prevents them from receiving the vaccine. Unless it creates an undue hardship for the employer, this would be considered a reasonable accommodation and the employer would have to grant the accommodation. The ADA defines an undue hardship as an action requiring significant difficulty or expense on an employer’s operation. The EEOC also states that employees with sincerely held religious beliefs could be exempt from taking a mandatory vaccine. These exemptions along with the discrimiantion risk posed by mandating a vaccine have led the EEOC to advise employers to simply encourage vaccination rather than enforce it.
What To Consider
There are several different things employers should consider before deciding on whether to encourage or require employees to get the COVID-19 vaccine.
- Evaluating Undue Safety Burdens: Employers will have to determine whether an employee poses an undue safety burden on co-workers by choosing not to get vaccinated. When evaluating this consideration, decide if there are other precautions that can be enforced to protect employees such as social distancing protocols, requiring employees to wear masks at work or encouraging telecommunications.
- Assessing and Granting Exemptions: If you plan to require employees to get the COVID-19 vaccine, you will also need to prepare for the difficult task of assessing exemptions. It’s important to make assessments on a case by case basis as wrongly denying an exemption request could leave you open to legal action.
- Evaluating Legal Risks of Requiring Vaccine: Employers must keep in mind that they may receive legal claims if they require employees to receive the vaccine and an employee experiences an adverse reaction to the vaccine or develops health problems.
- Sorting Out Logistics of the Vaccination: Whether you require employees to get the vaccine or not, there will be some logistical elements to consider, including:
- Will you hold on-site vaccination clinics?
- What vaccine will be used?
- Who will pay for the vaccine?
- Will you require or cover costs for families of employees to be vaccinated?
- If vaccination is mandatory, how long after the vaccine is available will employees have to get it?
In addition to the above, employers should consult legal counsel to determine whether there are unique risks to consider for their specific organization.
Create A Communication Plan
Creating a communication plan, whether you’re thinking about requiring employees to get vaccinated or not, will allow time for you to hear and address concerns of employees. There still isn’t a non-emergency approved vaccine open to the public so we caution you not to definitively tell employees if they will need to get the vaccine or not. At this stage of the process, early communication is the best way to convey your company’s intent and ensure compliance. Additionally, the CDC is offering a COVID-19 Vaccination Communication Toolkit to help build confidence about the vaccine for any employees who may be reluctant to get vaccinated. These communication materials can be useful as you begin to develop a communication plan.
Make The Process As Smooth As Possible
In order to get your entire workforce on board with the vaccine, you should make obtaining it as easy as possible. For example, adopt policies such as providing paid time off to obtain the vaccine, offer at-work vaccination clinics, or provide paid time off for any employee who may experience side effects, such as fatigue, from the vaccine. By granting easy access to the vaccine and paying all of the expenses, it will be much easier for you to get all of your employees vaccinated and ensure their safety.
Continue To Encourage CDC Guidelines To Prevent The Spread
Even after employees get vaccinated, the CDC recommends that individuals continue to take all precautionary measures in order to prevent the spread of COVID-19. Remind them the importance of social distancing, wearing a mask, washing hands often, and continuing to disinfect frequently touched surfaces and objects. It’s also important to keep in mind that not all employees will get vaccinated at the same time. Therefore, continuing these protocols to prevent the spread will be of the utmost importance as the vaccine gets rolled out.
COVID-19 Resources For Employers
The roll out of a vaccine is great news for businesses that have been hit hard by the pandemic as we’ll hopefully be moving closer toward ending it. However, it’s essential to begin preparing for when the vaccine becomes available to employers and employees. Waiting until the vaccine is readily available could leave your business susceptible to legal risks. Alltrust Insurance is dedicated to protecting the health of your business by offering employee benefits and HR consulting in South Florida. Contact us today to learn more about how you can prepare your business and employees for the COVID-19 vaccine.
This blog post is not intended to be exhaustive nor should any discussion or opinions be construed as legal advice. Readers should contact legal counsel for legal advice.
