While still estimated to arrive by the end of December or early next year, there will be an inevitable absence of clinical data as to the long-term impact of any COVID-19 vaccines currently in development, at the clinical trial stage or already prepping for distribution. From a legal standpoint, this unknown has businesses and experts in a quandary as to whether to mandate such vaccinations for employees — especially those who are in physical work facilities. While there may well be new legislation — federal or state — to address this issue, it is still one that should be considered carefully beforehand. This article delineates several considerations for wholesale distributors and businesses in general.
Historical Considerations including the Law on Vaccinations
Mandatory vaccinations for employees have, historically, been legal and not necessarily uncommon. Many businesses have required employees to get flu shots every year — especially in health care, education, and similar industries. Furthermore, employees are often obligated to demonstrate having been vaccinated for maladies ranging from polio, diphtheria, and chickenpox, to measles, mumps, and rubella. Most if not all states have laws that mandate and provide exemptions for immunizations. Historically, vaccines for these viruses and infections have, however, substantial data and long track records of safety — data that simply will not exist when a COVID-19 vaccine is made available. Hence, many Americans will embrace an "anti-vaxxer" sentiment.
From a legal standpoint, mandating vaccines is not per se illegal — the EEOC has released guidance that flu shots cannot be mandated for those who hold a sincere religious belief, practice, or observance (Title VII) or who are disabled (under the ADA) that precludes an immunization, in which case accommodations have to be considered. Generally, an undue hardship requires significant difficulty or expense incurred by an employer in providing an accommodation; and while the standards vary between Title VII and the ADA, state discrimination or other laws may also affect this analysis. Similarly, employers should consider that negative or adverse reactions (real or perceived) to a mandatory vaccine could trigger workers’ compensation claims or rights under other federal laws such as the Occupational Safety and Health Act of 1970 (OSHA) or the National Labor Relations Act that protects concerted employee action.
Balance of the Hardships
In the absence of some legal restrictions (such as those identified above), many health experts believe that it is vital for a critical mass of the United States population to be vaccinated to defeat COVID-19 as the economy seeks to further stabilize. The threat posed by the coronavirus is likely to persuade more distributors to consider mandatory vaccine policies. An important consideration lies in the actual industry and the physical plant in which one works — a balance between the risks to an entire labor force compared to the possibility of additional outbreaks. Against this is of course, the anti-vaxxers and traditional labor who generally believe that vaccines should not be mandatory, but if accepted by the employee, they should be paid for by the employer. Ultimately, the unknown as to a mandatory COVID-19 vaccine may run-afoul of thinking that broad public acceptance is necessary to mandate such vaccines. Regardless, from a legal standpoint (and regardless what theories of liability creative plaintiffs lawyers might create to exploit this novel issue), courts will be seeking to ensure that businesses, wearing their industry, business and employer hats, will have acted in good faith, based on solid scientific knowledge, in working out (or seeking to work out) disputes that exist depending on the circumstances.
Important Considerations for Businesses
Ultimately, after grappling with the impact decisions from closure, layoffs, furloughs, adverse financial impacts and engaging in the right strategies to keep their business afloat, yet one more difficult decision is likely in the offing. Distributors should:
- Obviously, follow CDC, WHO and other applicable guidance.
- Stay abreast of any new legislation or changes in regulations as to vaccination.
- Educate their workforce on all aspects of vaccination and related topics including guidance from public health officials.
- Carefully consider the consequences of implementing mandatory vaccination policies, legally, and otherwise, including the obligation of reasonably accommodate workers concerned about immunization.
- In this regard, strongly consider accommodations, such as work from home, for employees who refuse vaccination if a mandatory policy is in place.
- If adopted, ensure that there are no penalties associated with the time required to get vaccinated, make any undertaking as reasonably and employee-friendly as possible, and monitor any medical information, in accordance with laws applicable to employee privacy concerns, such as HIPAA.
- Putting aside federal programs that might pay for this type of protection, ensure that employees do not have to pay for any mandatory vaccination.
At the "end of the day," each employer should adopt a policy that is shared with all employees that makes clear all aspects of this issue, including the educational component. Even if only "strongly suggested," the importance of a comprehensive policy so that no ambiguity exists for employees is essential. Further, businesses, including distributors, wearing their many hats, should undertake to have sessions, possibly with professionals, to discus the issues of inoculations to prevent the further spread of the coronavirus and protection of fellow workers and citizens. And, certainly, consult with counsel on this latest of "tough decisions" relating to COVID-19.
For distributors interested in further conversation on this topic or to discuss other aspects of their business planning in the new world that inevitably lies ahead, please contact me at 312-840-7004 or firstname.lastname@example.org.
Fred Mendelsohn is a partner at Burke, Warren, MacKay & Serritella in Chicago.