In a few months, a handful of COVID-19 vaccines will likely have passed FDA requirements, gotten distributed, and become widely available. This poses a dilemma for small employers.
Whether you’ve got five or 50 people in your offices, you want all of your employees to be in a safe work environment. People getting sick on the job will not only hurt your business, but also will keep away other employees, both current and prospective. Not only that — and despite some federal protections from a new stimulus bill — you could be facing legal liability if someone gets sick from COVID because you didn’t take appropriate steps to protect people.
Last week, the U.S. Equal Employment Opportunity Commission (EEOC) issued guidance, saying that employers who require their employees to get vaccinated would not be violating the Americans With Disabilities Act of 1990. That’s because the test does not mean that an employer “is seeking information about an individual’s impairments or current health status and, therefore, it is not a medical examination.”
So does this mean that your company should require your employees to get vaccinated?
Given that one in three Americans indicates an intention to avoid the vaccine, according to a Gallup poll taken in early August, are you potentially creating a firestorm or a public relations nightmare by doing so? Are you risking a potentially toxic debate between those employees who believe that any vaccine mandate violates their personal rights and those who believe that vaccines are in everyone’s best interest?
In the end, the decision is still up to you, the employer. Claude Schoenberg, an employment lawyer based in Bala Cynwyd, says that employers can mandate vaccinations, but should do so cautiously.
“You should ask yourself: Would a mandatory vaccination policy be beneficial to all of your operations, to all of your employees, and to your business visitors and customers, and if so why?” According to Schoenberg, some employees may be more safety sensitive and therefore more likely to benefit from a mandatory COVID-19 vaccination policy, while others may be more at risk than others to contract COVID-19, based on their work location and proximity to other employees. “Just having one COVID-19 policy may not fit all circumstances in your workplace,” he says.
Schoenberg also says that employers should consider how vaccinations would be administered (i.e. on premises or during working hours). Other issues include who pays for the vaccine and whether any of your employees would be exempt based on their religious convictions, a disability, or for a valid medical reason. Existing policies, such as whether you’ve required flu vaccinations in the past, would also help establish a new policy.
It’s also critical to check on your insurance coverage. “You need to know what protection you might have in case an employee suffers an adverse reaction to a mandated COVID-19 vaccine,” Schoenberg says. “You should consider whether that amount of insurance protection is sufficient.”
Mike Murphy, a partner with the Murphy Law Group LLC in Philadelphia, is also concerned about potential liabilities. “Employers who mandate vaccination against COVID-19 may also face workers’ compensation claims” if the injections give rise to injuries or prolonged illness, he says. “Conversely, employers who do not mandate vaccines may face potential claims from employees who become sick under the Occupational Safety and Health Act, which requires employers to furnish a place of employment free from recognized hazards likely to cause death or serious harm to their employees.”
Most experts agree that — like dress codes or certain types of inappropriate behavior — employers can build into their policies whatever conditions they want to ensure continued employment as long as they aren’t discriminatory. One client I know does not have a drug-use policy while another whose business transports toxic chemicals has a strict zero-tolerance policy. Some employers mandate drug testing. Others have rules about what employees can post on social media. It’s up to the employer. So, yes, you can mandate that your employees get vaccinated. Or not.
Regardless of your decision, both Murphy and Schoenberg agree that, given the importance and impact these vaccinations will have, employers should discuss the matter with their lawyers.