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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 May 29, 2021]

The development of the COVID-19 vaccines has been a miracle of modern medical technology and is being heralded in the United States as the key to moving forward into the post-pandemic phase for our country. Indeed, on May 13 the CDC effectively announcing that the pandemic was over for anyone who has been vaccinated: no more masks and no more social distancing in all but a few settings such as hospitals and during travel. While not all states have immediately embraced this guidance – notably, California is delaying the lifting of any restrictions until it can be done as a part of the anticipated overall re-opening of the state on June 15 – and individual counties, cities, or even businesses may still maintain their own restrictions, it is nonetheless clear that the COVID-19 vaccines have become our designated path out of the pandemic.

It is also clear that many businesses are grappling with what their post-pandemic operations look like. With the great work-from-home experiment coming to an end, many employers are finding that a return to “business as usual” may not be in the cards for them or their employees. Nonetheless, for those employers that are contemplating bringing employees back into the office on a regular basis – whether that is fully back to the 9-5 grind or a hybrid approach of both office work and working from home – 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 politicized and controversial nature of many workplace safety measures – whether it is mask wearing, hand washing, social distancing, or any of the many other safety guidelines that have been suggested throughout the course of the pandemic – it is tempting for any private employer to simply cut to the chase and just require that all of its employees be vaccinated. After all, if everyone is vaccinated, then everyone is immune to COVID-19 and there’s no need for safety measures. All upside and no downside, right?

While it may be true from a scientific perspective, from a legal perspective things can get trickier. Although a vaccine mandate may not necessarily be illegal (depending on your state and local rules and regulations), there are still at least three legal issues of concern.

Emergency Use Approval is not the same as FDA approval

First, none of the COVID-19 vaccines are FDA approved. 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.”

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.”

That said, as of May 28, 2021, the U.S. Equal Employment Opportunity Commission (“EEOC”) revised its COVID-19 guidance (link provided here) to specifically tackle the issue of vaccines in the workplace. While the guidelines are extensive, the EEOC advises that: “The federal EEO laws do not prevent an employer from requiring all employees physically entering the workplace to be vaccinated for COVID-19, subject to the reasonable accommodation provisions of Title VII and the ADA and other EEO considerations discussed below.  These principles apply if an employee gets the vaccine in the community or from the employer.” Of note, this is the only with respect to federal EEO laws – your local state, county, or city regulations may differ or be stricter.

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 very practical benefits, employers should keep in mind that those benefits are not without potentially significant risks that may ultimately outweigh those benefits. It is likely the reason that many employers are opting to encourage employees to be vaccinated through incentives rather than mandating them – an effort to reap the benefits of a fully vaccinated workforce while avoiding the risks associated with being the cause of the vaccinations. It should be noted that even mere incentive programs, however, are not without some risk, as the EEOC’s updated guidance states that an incentive program, whether rewards or penalties, cannot be so substantial so as to be “coercive” when the program incentivizes being vaccinated by the employer. In short, then, any involvement with an employee’s vaccination decisions – whether it be getting directly involved with the vaccination process or asking for proof of vaccination – should be handled carefully and properly.

Every employer’s situation is unique and thus employers should carefully weigh the risks and benefits for their specific workforce before deciding how to move forward. 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.