With the nationwide rollout of the COVID-19 vaccine underway, employers are grappling with whether or not to mandate vaccines. There are many dimensions to this decision ranging from workers compensation implications and potential OSHA regulations, to impacts of mandates on unions. During our Feb. 25 webinar, Buchanan Ingersoll & Rooney’s Labor and Employment attorneys joined together for an informational discussion on legal issues surrounding the roll-out of the COVID-19 vaccine. Five key issues were explored.
A link to the full recording can be found here.
Employer-Sponsored Surveys, Incentives and Penalties
As employers begin conversations around vaccine mandates, many are implementing surveys to obtain employee feedback on interest/ability to return to work, their willingness to get the vaccine and expectations for moving forward. These surveys can help the employer understand if their employees will feel more comfortable returning to work once they, and/or the majority of their workforce, are vaccinated. It is important to note that surveying employees must be done with caution and should be conducted under guided counsel. No survey should elicit information about an employee’s disability or genetic condition. Additionally, employers’ surveys should be voluntary and include an option for anonymity among responses.
Another common theme employers are adopting is providing employee incentives for vaccination. Some of the incentives include paying employees for time off to obtain the vaccine, gift cards or additional paid time off. Some employers are also offering incentives to employees who do not have to be vaccinated under Title VII or the ADA for attending additional safety trainings or for wearing extra PPE.
Similar to surveys, incentives should also be approached with caution. Whether or not the vaccine is actually being mandated or simply encouraged must be clearly defined. If an employer does opt to mandate the vaccine, it shouldn’t be done until after a careful analysis is completed and it is determined that it is essential for safety.
Some employers may want to take action if an employee refuses to take a mandated vaccine. We strongly advise against penalizing employees. Some reasons this may not be a good idea include:
- Vaccines have only been approved under Emergency Use Authorization by the FDA
- They are not 100 percent effective
- Employees may have legal protections which support their refusal to get vaccinated
Employers who are considering penalties for employees who refuse vaccination should engage trusted counsel to make sure there is legal cause behind their argument.
Workers Compensation Issues
When considering what implications the vaccine may have on workers compensation, it is essential to take into account state and local regulations. The most common question is, “If an employer mandates its employees to be vaccinated, will the employee be entitled to workers compensation benefits if the employee has an adverse reaction to the vaccine?” The short answer is yes. If an employer mandated the vaccine as part of an employee’s scope of work, that reaction/ injury will be compensable.
The other question is, “Who bears the burden of proof to establish that the symptoms are a result of the vaccine?” And furthermore, who then determines whether the reaction is compensable?
The burden of proof will be on the injured worker to prove that they had a reaction. Similar to other workers compensation claims, the employee will need to establish and prove through medical evidence, and submit the evidence to their employer. Once reported, an employer submits the claim to its third-party administrator or insurance company, and that party will ultimately decide if the claim is compensable. If the claim is proven, employers would likely be responsible for wage-loss benefits, plus any associated medical expenses.
Unions and Collective Bargaining
Employers that have workforces represented by unions should proceed with extreme caution when navigating mandates. Workplaces that do not have a union present could also be subjected to legal obligations under the National Labor Relations Act (NLRA).
For a unionized workforce, the NRLA requires employers to provide unions with a notice and an opportunity to bargain over most major decisions affecting employment, unless the topic is covered by the collective bargaining agreement (CBA) or the union has waived its right to bargain over such issues. For non-unionized workforces, if employees are making a concerted activity to oppose the mandate there can be liability for the employer under the NLRA, as employers must address the opposition.
There is speculation around what positions unions will take for employees surrounding vaccinations. In some circumstances, most notably in the healthcare and education industries, unions want their employees to be first on the list for the vaccine. And some unions have already conceded to a mandate, but are requiring employers to offer incentives in the form of money or time off.
Specific Considerations for Healthcare and Higher Education
Employers in the healthcare and higher education sectors face especially complex issues due to the nature of their work.
For higher education employers, there is a lot of concern over the actions of students and the direct impact they may have on faculty and staff. Colleges have to consider, if they do not require students to vaccinate before returning to campus, can they legally require a medically at risk employee to return to work? Engaging in the interactive process under the Americans with Disabilities Act is necessary. One of the most simple and valuable tactics employers can use right now is to closely analyze the job descriptions in place for faculty and staff. The job descriptions should reflect whether it is essential for the employees to be on campus to successfully conduct their work.
Within the healthcare sector, can employers ban an employee from working if they cannot or will not get vaccinated due to a legitimate religious or medical reason? The analysis is complex. The Equal Employment Opportunity Commission issued guidance to help employers navigate this situation. Again, it could be helpful to survey employees on whether they would be willing to take a vaccine prior to deciding whether to mandate vaccines.
For employers in healthcare and other industries a key question will be whether you can fire an employee who cannot or will not take a vaccine based upon a religious or medical-related objection. The answer depends heavily on the employee’s job duties and whether a reasonable accommodation is available. Engaging in the interactive process with each employee is critical. Under Title VII, the test for whether a religious accommodation request is not reasonable and creates an undue hardship is whether the impact to the business is more than “de minimus” or slight. You may already have a reasonable accommodation request form for an ADA accommodation. Consider implementing a similar request form for a religious exemption request.
Under the Americans with Disabilities Act, the test for whether a disability-based accommodation creates an undue hardship is tougher to meet. The employer must show the accommodation would cause significant difficulty or expense to the business. Having an unvaccinated employee around a vulnerable patient population might meet the “de minimus” test. Depending on what level of patient contact the employee has, the higher ADA burden may or may not be met. The answers are not clear-cut. There will be litigation over these issues and ultimately the courts will answer these questions for us.
OSHA Involvement in the Fight against COVID-19
The Occupational Safety and Health Administration (OSHA) has already issued more targeted guidance for mitigating and preventing the spread of COVID-19, and may begin to take a more active role under the Biden Administration. The day after the inauguration, President Biden issued a number of executive orders addressing the pandemic including orders directing OSHA to:
- Issue more targeted and updated guidance;
- Consider establishing emergency temporary standards by March 15
- Step-up enforcement against the biggest violators.
OSHA may end up recommending that employers consider making COVID-19 vaccines available at no cost to all eligible employees. They also stress that employees get vaccinated, continue to adhere to the protective measures in place, and continue the use of personal protective equipment (PPE).
As vaccines become more widely available and we learn more about the roll-out, the conversation among employers will continue to evolve. Like many of the obstacles we have faced in the past year, there is no cut-and-dry answer to whether or not to mandate the vaccine.
We remain focused on developments surrounding COVID-19 and the vaccine as it relates to labor and employment law. We are available to address your questions and concerns related to this issue or any other labor, employment, workers’ compensation, immigration or safety/health issues in your respective workplaces.