Amy Miller, shareholder in the Litigation section and co-head of the firm's Washington, D.C. office, authored an article for Healthcare Business Today entitled, “Mandating the COVID-19 Vaccine for Employees.” Amy identifies six steps employers can take now to help avoid employee claims later.
By Amy Miller
Many employers will consider a mandatory vaccine program for at least a subset of workers during 2021, while also offering an incentivized voluntary program to others. These vaccination programs must be planned carefully to avoid claims under federal, state, and local laws.
Taking these six steps now can help avoid claims later associated with mandating the COVID-19 vaccine:
1. Early, positive messaging. An overly-aggressive or poorly communicated vaccine program can lead to distrust and claims. Employers can lay the foundation now for a mandatory vaccine program later with positive messaging that focuses on safety and health benefits, as well as specific business objectives advanced by a vaccine program.
The FDA and CDC have created informational resources which employers can provide to employees now to build trust. Such information should be presented as resources from public health authorities, not the employer, to avoid any suggestion that the employer is providing medical advice. If employees raise questions about their own health issues, they should be encouraged to talk to their personal health care provider(s) about the vaccine.
Employers can start building employee support by offering incentives for voluntary vaccines, such as flexible time off, nominal gift cards, stickers and buttons, and goal contests among departments.
2. Vaccine policy. A written vaccination policy containing the employer’s business justification is critical to defending employee claims. The policy can also support denial of medical, religious or reasonable accommodation requests, when necessary. Elements of a mandatory vaccine policy include:
- Identifying which subsets of employees are subject to the mandatory requirements;
- How the vaccine requirements are job-related and consistent with business necessity, including a statement that noncompliance will pose a “direct threat” to the health or safety of the employee or others;
- Availability of medical/religious/reasonable accommodation resources, and designated points of contact;
- Logistics in receiving the vaccine (e.g. onsite v. offsite with preferred provider(s)) and obtaining consent and authorization for the vaccine;
- Required proof of vaccination to the employer;
- Assurances that privacy will be maintained;
- Consequences for noncompliance with the policy (e.g. banning from workplace, discipline, etc.), absent an approved accommodation request; and
- Effective date(s) for the mandatory requirements.
Employers should consult applicable state laws to ensure there are no legal prohibitions to enforcing a mandatory vaccine policy. Unionized employers should consult collective bargaining agreement(s) for any requirements to negotiate vaccine requirements.
3. Accommodation and leave policies. Employers need legally-compliant policies governing medical and religious accommodations which track the latest EEOC guidance, as well as accessible forms for employees, and training for HR personnel who oversee the interactive process.
If an employer-mandated vaccine policy screens out or bans a qualified individual with a disability from employment, the employer must show, on an individualized basis, that an unvaccinated employee would pose a “direct threat” to the workplace.
Employers should consider now which accommodation(s), it can offer to employees with valid medical or religious issues. Accommodations might include additional PPE, modifying duties, or temporary or permanent transfers to other assignments. The employer need not provide an accommodation specifically requested by the employee – only a “reasonable” accommodation.
Employers also should review existing leave policies, and consider flexibility in granting leave to employees who suffer from side effects after receiving the vaccine.
4. Privacy of information. Privacy-related claims can arise in several contexts:
- It is unlawful for the employer to disclose to other unauthorized employees that someone has been granted an accommodation based on disability.
- Under various state privacy laws, employers may not disclose who among their workforce has taken the COVID-19 vaccine without the employee’s prior consent.
- When an employer requires proof from an employee that vaccination was received through a third party, the employer should instruct the employee not to include medical information.
- Special precautions should be taken when medical information is received, even if not requested, and filed separately, if received.
5. Workers’ compensation coverage. Employers should check workers’ compensation coverage, which may have specific requirements for vaccine administration or reporting in the event of injury. In many states, workers’ compensation laws limit claims for negligence related to a mandatory vaccination program. Coverage for injuries from voluntary vaccines may also exist under certain situations.
6. PREP Act requirements. If providing or facilitating a vaccine for employees, employers may have liability protection under the Public Readiness and Emergency Preparedness Act (PREP Act) and its Declaration, as amended. The PREP Act is intended to preempt state and local laws, and provides immunity to employers (as “covered persons”) that administer FDA-authorized or FDA-approved vaccines during the COVID-19 national emergency, if other PREP Act requirements are met. A recent amendment to the declaration allows employers to partner more easily with pharmacists in administering vaccines and still receive liability protection. Employers should consult legal counsel for requirements under the PREP Act if considering hosting a vaccine clinic for employees, as guidance is continuing to evolve.