It was a relief when Pfizer and, then Moderna, released that they had both developed an effective Covid-19 vaccine. We saw a light at the end of the tunnel. The state and local governments have released plans for the roll-out of the vaccines to those populations most in need, starting with health professionals, first responders, and nursing home residents and care givers.
Of course, this adds a new challenge for employers as they navigate whether they can require their employees to be vaccinated and how they can safely re-open, as applicable.
Mandatory Vaccination Policies Are Allowed
While the law has not been tested on the specific issue of a COVID-19 vaccine, based on prior precedent, an employer must have a reasonable belief that a mandatory vaccine policy is required because an employee’s ability to perform essential job functions will be impaired by COVID-19 or an employee will pose a direct threat due to COVID-19. The EEOC has issued guidance to help employers navigate this issue.
For certain industries, such as healthcare, it is easy to understand that all healthcare professionals and patient-facing staff can be required to obtain the vaccine. However, would the back office staff also need to obtain the vaccine? It really will depend on many factors – the office set-up, the interactions between the staff, the essential functions of the position. Each employer should scrutinize its operations and document its specific reasons for requiring the COVID-19 vaccine.
All Other Employment Laws Still Apply
As we have reminded you regularly, the pandemic did not put other employment laws on hold. When applying a mandatory vaccine policy, you must be aware of the Americans with Disabilities Act, as well as all other anti-discrimination laws. The policy must be uniformly applied to everyone with no benign discrimination, such as, encouraging the older employees to get vaccinated first. If COVID-19 vaccines are provided like flu shots, in the office by a third party, the employer must ensure that all the pre-screening questions are related to a business necessity to ensure the safety of the vaccine and not providing more information than absolutely necessary. If an employee refuses to get the COVID-19 vaccine because of a disability or religious belief, then the employer must treat the refusal as a request for accommodation. Otherwise, the employer must assess the harm and may take appropriate disciplinary action for failure to comply with the policy.
Recommendations
One size does not fit all! Before your business considers requiring vaccines, we recommend you take the following steps:
- Evaluate. You should consider your workplace, your staff, and your business to determine your company’s vaccine policy.
- Prepare. Once you have determined the vaccine policy, you need to draft the actual policy and distribute it to the staff.
- Educate. You must educate yourself and your staff on the vaccine and the recommended protocols as the vaccine is being distributed. The universal precautions (i.e. masks, social distancing, sanitizing, etc.) will not go away overnight. The state and local health departments will continue to provide guidance on this as we move forward.
- Implement. When the vaccines are available, you must fairly and uniformly implement your policy being careful not the inadvertently discriminate against your employees.
The COVID-19 vaccine will be a new challenge but we are here to help. We got this! Please feel free to contact the attorneys at McMillan Metro Faerber at (301) 251-1180 to discuss any questions.
