An Employer’s Dilemma: To Mandate (or Not) the COVID-19 Vaccine?

Brand Story – Capping off a year that was in great need of some brightness, December brought good news.

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After emergency Food and Drug Administration approvals, first Pfizer and then Moderna shipped COVID-19 vaccines to locations throughout the United States, kicking off a mass-immunization campaign that is fast-tracked for delivery across the country. The unprecedented speed of the vaccine’s development is the result of Operation Warp Speed, a public-private initiative which trimmed the lengthy timeframe generally associated with vaccine development.

While the success of this effort was lauded by many as a medical marvel, others were more skeptical. A Pew Research Center poll and a Gallup survey, both conducted in November, found that approximately 60% of Americans are willing to receive the vaccine — leaving 40% either reluctant or opposed to vaccination.

Meanwhile, COVID-19, which is spreading virtually unchecked in several states, continues to critically impact business operations across the economic spectrum, with some industries teetering on the edge of collapse and others facing severe staffing shortages. As a result, companies in a variety of industries may be considering mandating vaccinations for their employees.

But, given the complicated overlay of federal and state laws and regulations combined with the widespread skepticism facing the vaccination campaign, can employers legally mandate vaccination? And, if they can, should they?

Can employers legally mandate the COVID-19 vaccine?

Likely yes, but with caveats and cautions, some of which are summarized below.

Initially, in mid-December, the Equal Employment Opportunity Commission (EEOC) released guidance indicating that employers can mandate vaccines, subject to well-known disability and religious exemptions. However, in some circumstances, employees who refuse the COVID-19 vaccine because of a disability or religious belief can nevertheless be excluded from the workplace if no other accommodation would allow that employee to return to work.
As always, it is vital that employers engage in the interactive process and explore possible accommodations before considering termination.

But our analysis does not end with the EEOC guidance. Other laws and regulations may play a role in an employer’s ability (and desire) to mandate the vaccine. To start, employers should consider potential worker’s compensation liability, such as if an employee experiences an adverse reaction to a vaccine. Further, employers should be wary of Federal Drug Administration requirements, particularly for emergency use vaccines. Finally, unionized and nonunionized workplaces, mandatory vaccines could implicate issues under the National Labor Relations Act (NLRA). For example, in all workplaces, if employees protest mandatory vaccinations, such actions could constitute protected concerted activity under Section 7 of the NLRA. And, in unionized work places, a compulsory vaccine program is likely a mandatory subject of bargaining.

Finally, state laws may cause additional headaches. For example, an Oregon law requires that certain health care employers must provide — but generally cannot mandate — vaccines to employees. Meanwhile, across the border in California, state law expressly grants health care employers the power to mandate certain vaccinations. Multi-state employers need to pay careful attention to differences across state lines.

But, should employers mandate the COVID-19 vaccine?

It depends. The answer likely hinges on business-and industry-specific considerations as well as the inevitable challenges of implementing a mandatory vaccination program, rather than a voluntary program.

A mandatory program will require extensive procedures governing various issues, including who pays for the vaccines, how employees prove receipt of their vaccinations, whether employees are required to re-vaccinate if medically recommended, how to manage confidentiality concerns, how employees prove disability or religious exemptions, and what happens if vaccines are not available. Moreover, employers will have to decide how to enforce their mandate while ensuring uniform treatment in order to avoid discrimination claims. To that end, implementation may require extensive management training.

However, a voluntary vaccination program may accomplish many of the same goals. Indeed, employees may elect to get vaccinated, especially if a vaccine is made readily available without cost. To help relieve any anxiety, employers might consider partnering with a health care organization to run an educational campaign about the benefits of getting vaccinated. Additionally, offering employee assistance programs may increase overall compliance by providing employees with resources and support.

In short, employers may find that — as they build employee trust and confidence in the COVID-19 vaccine and make it easier for employees to voluntarily say yes — a mandatory vaccination program may not be necessary.

Reuther MeganContact Megan Reuther, Labor & Employment Attorney, Tonkon Torp LLP  for guidance on how your business can best navigate this thorny issue. 503.802.2174, [email protected]

Megan Reuther is an attorney in Tonkon Torp’s Labor & Employment Practice Group, she advises local, regional and national clients on employment matters and has substantial experience in state and federal court, and before various agencies. She can be reached at 503-802-2174 or [email protected].