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Posted by on May 24, 2021 in Publications |

Should private employers mandate COVID vaccines for employees?  Weighing the benefits against the risks.

Should private employers mandate COVID vaccines for employees? Weighing the benefits against the risks.

[Last Updated September 30, 2021]

The development of the COVID-19 vaccines has been a miracle of modern medical technology and is being heralded in the United States, and most of the world for that matter, as the key to moving past the COVID-19 pandemic. While the Delta variant has complicated, or altogether delayed, the re-opening process, it is clear that many businesses are currently grappling with what their post-pandemic operations look like.

For those employers that are contemplating bringing employees back into the office on a regular basis – whether that is back to full-time office work or a hybrid approach of both office work and remote work – one of the significant concerns that should be considered and addressed is the safety of their employees (and the confidence those employees have in the safety measures being taken) with respect to COVID-19.

Given the controversy and enforcement issues associated with workplace safety measures – whether it is mask wearing, hand washing, social distancing, or any of the many other safety guidelines that have been advised throughout the course of the pandemic – many private employers (and public employers for that matter) are moving towards mandating that their employees be vaccinated, with multiple vaccine mandates appearing over the past few months at both the federal and local levels.

Since this post was first published in May of 2021, a host of factors have changed – everything from the spread of the Delta variant to the sweeping vaccination mandate issued by the federal government several weeks ago have significantly changed the balance between the benefits and risks of vaccination mandates. In short, the three potential legal issues previously identified as potential risks for a vaccine mandate have diminished or faded to reflect relatively benign risks, at least from a legal perspective. As such, while the legal issues below may still be considerations in how to approach a vaccine mandate – e.g., whether to allow exemptions – with OSHA set to require numerous large businesses to mandate vaccinations, healthcare systems across the country imposing their own vaccine mandates, and local governments attaching vaccine mandates for everything from attending school to eating inside restaurants, the risk of legal exposure from the imposition of a vaccine mandate has significantly diminished provided it is implemented properly and legally.

Three things to consider:

Emergency Use Approval is not the same as FDA approval

First, not all of the COVID-19 vaccines are FDA approved. All but one of the COVID-19 vaccines operate under an Emergency Use Approval (EUA), which the FDA defines as: “Under an EUA, FDA may allow the use of unapproved medical products, or unapproved uses of approved medical products in an emergency to diagnose, treat, or prevent serious or life-threatening diseases or conditions when certain statutory criteria have been met, including that there are no adequate, approved, and available alternatives.”

Moreover, although the vaccines were tested and then studied extensively in the real world, the fact remains that no one knows if there are long term side effects because not enough time has passed – while history is replete with rapid technological advancements that have been adopted without issue, our history also contains disasters such as the use of asbestos which, while at the time seemed safe to use as insulation, ultimately proved to be deadly. In short, no employer wants to be the employer in the advertisement 15 years from now: “Did your employer force you to get vaccinated in 2021? If so, call this number to join the class action lawsuit.”

Again, however, the broad popularity and government involvement with numerous vaccine mandates across the country would likely provide cover to most, if not all, legal challenges to a vaccine mandate.

The vaccinations can cause health complications

Second, it is well-documented that there can be significant side-effects to the vaccinations. It is not unheard of for people to become sick for several days following the first and/or second shot and severe allergic reactions, though rare, still occur. In fact, three people even died as a result of blood clots potentially caused by one of the vaccines:

In the event of a serious adverse reaction, by forcing the vaccination the employer risks being responsible to pay for costs associated with the reaction – whether that be granting additional sick days, paying for hospitalization stemming from an allergic reaction, or even potentially being sued for the death of an employee. It is also possible that workers’ compensation could be implicated, further complicating the process.

Some employees may be protected against compelled vaccinations

And lastly, not all employees can or are willing to be vaccinated due to varying health conditions or beliefs. As discussed above, federal laws such as the Americans with Disabilities Act (ADA) and Title VII require that employers make reasonable accommodations which, coupled with the updated EEOC guidance, make it clear that reasonable accommodations require that employers make an effort to provide a reasonable alternative to their vaccines mandates, including, but not limited to, masking or remote work. While this requirement does not necessarily mean that accommodations must be made no matter the circumstances, such as if the accommodation would create a direct threat to the health and safety of the employer’s workforce, any employer who compels vaccinations and then terminates an employee for failing to comply nonetheless runs a significant risk of a wrongful termination lawsuit.

Accordingly, while mandating vaccines carries many practical benefits, employers should nonetheless keep in mind that such mandates should be implemented with care and due consideration of the particulars of their specific workforce that may complicate the rollout of such a mandate.

From all of us at BKN, we hope that you remain safe and well. If we can be of assistance in navigating your post-pandemic workplace, please do not hesitate to contact us at your earliest convenience.