The long-awaited COVID-19 vaccine’s arrival has provided a ray of sunshine for employers hoping for a better 2021. But it also raised a slew of questions: How long until my workforce has access to it? Can I require all employees to be vaccinated? What if an individual worker refuses? Let’s look at the reasoning behind vaccination mandates and the potential pitfalls for employers seeking to enforce them.
Can You Require Employees to Get Vaccinated?
Generally, yes. You can require vaccinations if they’re (1) job-related and consistent with business necessity or (2) justified by a direct threat. Certain exceptions may apply if the mandate would violate an employee’s genuine religious beliefs under Title VII of the Civil Rights Act of 1964 or require an accommodation for the individual’s disability under the Americans with Disabilities Act (ADA). The inquiries are very fact-specific, and you should consult an attorney to determine if a mandate would be appropriate for your business and identify any exceptions that might apply.
Though the COVID-19 vaccine is unique in both its type and speed of release, a look at influenza vaccine policies can be instructive. According to a 2017 survey, less than 45% of individuals ages 19 and older received a flu vaccination. The number was somewhat higher for adults with high-risk conditions (60%) and people 65 and older (68%). Since more than 50% of the adult population chooses to skip the shot, some large-scale employers have turned to mandatory flu vaccination policies in recent years to protect their employees and customer base.
Essentia Health, based out of Duluth, Minnesota, made national news in 2017 when it was sued after firing about 50 employees for failing to get a flu shot. The mass firing was the result of a newly implemented policy aimed at increasing the percentage of employees receiving the vaccine. In a statement to the press, the company’s infectious disease and chief quality and safety officer said:
Essentia Health cares for vulnerable patients every day. Immunization significantly minimizes the risk of patients contracting influenza while under our care. What most people don’t know is that one can spread the flu even with minimal to no signs of illness. To protect our patients, all Essentia colleagues, volunteers, students and vendors are required to get a flu shot or receive an exemption.
Fast-forward three years, and the statement can just as easily (and perhaps even more significantly) apply to the COVID-19 pandemic and the recently released vaccine.
Other nationwide healthcare providers implementing flu shot mandates in the last several years include Johns Hopkins Health System in Maryland and South Dakota-based Sanford Health. Fifteen states, including Colorado, New Hampshire, and Alabama, have even gone so far as to codify the requirement in an effort to keep high-risk populations safe.
Factors in Favor of Vaccine Mandate
With flu vaccine mandates already somewhat commonplace and public health experts saying we’ll need a 75% to 80% vaccination rate before herd immunity will kick in for COVID-19, should your business require employees to get vaccinated? Here are some factors in favor of a mandate:
Exposure to illness. If your employees are in frequent contact with John Q. Public, especially children or the elderly, it may be advisable for them to receive the shot. Pertinent businesses include daycares, retail service providers, and banks.
Time-sensitive work. COVID-19 is highly contagious and can easily wipe out a workforce. And that’s not even considering the implications of postexposure isolation mandated by local or state governments. If your product or service requires all hands on deck, you may want to consider a policy encouraging employees to vaccinate.
Potential Pitfalls of Requiring Shots
Here are some major potential pitfalls you should consider before revising your employee handbook and requiring the coronavirus vaccine:
Timing is everything. Unlike the flu vaccine, the COVID-19 vaccine hasn’t received full approval from the Food and Drug Administration (FDA). The Pfizer vaccine, for example, received “emergency use authorization” on December 11, meaning it may be effective in preventing the virus. The data showed its “known and potential benefits outweigh the known and potential risks, supporting the vaccine’s use in millions of people 16 years of age and older, including healthy individuals.”
Absent FDA approval, many Americans remain leery about the vaccine’s effectiveness and potential side effects. The lingering questions could make a COVID-19 vaccine mandate less likely to survive a court challenge. You may be better off encouraging vaccination as it becomes available to employees in the phased release, then moving to a mandate only after full FDA approval has been given.
Beware the chopping block. Often in employment situations, it’s best to implement a graduated warning system rather than a cut-and-dried “you’re fired” approach. Giving employees an opportunity to air grievances and take responsive action can provide the required due process.
Disparate impact. While forcing all employees across the board to get a flu shot avoids any blatant religious discrimination, it’s very possible the requirement would disparately affect certain religions. Though you’re required to accommodate religious exemptions under Title VII only if the religious belief is “sincerely held,” it’s a very uncomfortable position indeed to be the one deciding which requests are “good enough.”
It takes only one. An early big concern with the Pfizer COVID-19 vaccine was the risk of severe adverse reaction. If an employee gets vaccinated in compliance with a company requirement and has a severe reaction or is allergic to the shot, it’s possible the employer could be held liable for any damages suffered.
Possible Middle Ground
If your business has multiple departments, you could consider a meet-in-the-middle approach: Employees on the front line of public contact (e.g., doctors, salespersons, and bankers) could get the shot, but workers in office environments or remote locations could skip it.
If you’re considering a vaccine mandate, be sure to account for the risk of adverse side effects. Your policy should address time off for employees to recover from the shot and/or care for family members who have received it. Consider having them get the vaccine in phases to avoid having your entire staff in recovery at the same time.
Kelsey Heino is an employment attorney with the Goosmann Law Firm in Sioux Falls, South Dakota. You can reach her at heinok@GoosmannLaw.com.