Employers start preparing for the coronavirus vaccine
with a question: Can we require it?
With vaccines on the horizon, employers are
asking if they can be mandated — and how well workers would comply
By
Dec. 2, 2020 at 8:50 a.m. EST
As news
of promising progress on coronavirus vaccines
have filled the headlines in recent weeks, labor lawyers say employers have
been pressing one question in particular: Once approved, can they require
employees to take it?
“Until
maybe about a month ago, we hadn’t had many clients asking about it,” said
Brett Coburn, a labor and employment partner with Alston & Bird. “We’re
starting to see a lot more momentum.”
The
news that a coronavirus vaccine could start being distributed within the next few weeks has
sent stocks soaring and government officials scrambling to develop plans for
the herculean task of distributing it across the country.
For
employers, many of which have kept workers home for months, it has opened a
complex set of legal and practical issues: Can they require employees to take a
vaccine? Should they offer incentives instead to encourage compliance? And what
should they do if employees resist?
“You’re
going to have a lot more people who are lacking comfort about safety” of the
vaccine after such a short development timeline, said Coburn. “Add on top of
that the political issues that have unfortunately taken over. If someone’s not
willing to wear a mask, do you think they’re going to put a shot in their
body?”
It will
likely be months before anyone besides health care and other essential workers
have access to the vaccine. On Tuesday, an advisory panel to the Centers for
Disease Control and Prevention said health-care
workers and long-term care residents and staff should get top priority for the
vaccine.
In the
meantime, employers are waiting for specific guidance from federal agencies
such as the U.S. Equal Employment Opportunity Commission (EEOC) and the CDC
before setting corporate policies, employment lawyers say.
Christine
Nazer, an EEOC spokeswoman, said in a statement the EEOC “is actively
evaluating how a potential vaccine would interact with employers’ obligations
under the Americans with Disabilities Act, Title VII of the Civil Rights Act of
1964, and the other laws the Commission enforces.” An email to the CDC was not
immediately returned.
“There
are so many unknowns, so many unanswered questions,” said Sharon Perley
Masling, a partner at Morgan Lewis, who said most of her clients are
considering just encouraging the vaccine until there is government guidance.
“We’re operating from a bit of a blank slate right now.”
The
biggest difference between requiring employees to take a vaccine for the
coronavirus compared with the flu or other vaccines — which health-care
organizations have long required — is that covid-19 vaccines are expected to
first be available under an “emergency use authorization” rather than a full FDA licensure,
Masling said. “To the best of my knowledge, the issue of whether an employer
can require a vaccine that is still under an emergency use authorization hasn’t
arose before,” she said, adding the EEOC might be “cautious about
the guidance it will issue about a vaccine that has not yet received full
approval.”
Once a
coronavirus vaccine receives formal government approval, employment lawyers say
it’s more likely to be treated like the flu shot, which can be mandated, even
if it’s currently rare outside the health care field.
But
that comes with several important caveats. Employers must abide by any state or
local laws, as well as provide “reasonable accommodations” to people with
qualified disabilities and to those who have religious objections, as required
by the ADA and Title VII, respectively. Under the ADA, a vaccination is
considered a medical examination that must be “job-related and consistent with
business necessity or it’s necessitated by a direct threat,” said Karla
Grossenbacher, a labor and employment lawyer with Seyfarth Shaw. Collective
bargaining agreements with unionized workforces should also be consulted,
employment lawyers said.
Some
big corporations say they are beginning to prepare, if not necessarily issuing
mandates.
Ford said Nov. 24 that
it ordered a dozen specialty freezers to store Pfizer’s coronavirus vaccine at
ultralow temperatures, and would make the vaccine available to employees “on a
voluntary basis,” said spokeswoman Kelli Felker.
In an
email, Tyson Foods spokesman Derek Burleson said the meat processor, which has
faced outbreaks in
its plants, was working with
health care firms including Matrix Medical Network to get employees access to
the vaccine when it becomes available. Burleson said it was too early to say
whether it will mandate the vaccine, but its decision “will be in full
compliance with federal and state law and with the best interests of our team
members in mind.”
Target
spokeswoman Jenna Reck said in an email that its coronavirus task force is
closely monitoring vaccine developments and plans to offer it to employees and
customers at its in-store CVS pharmacies once a vaccine is authorized and made
available to the public. Reck said she did not have additional details when
asked whether a vaccine would be required.
For
many employers, the big question will be not just whether they can mandate the
vaccine but whether employees would be willing to take it.
A
recent study commissioned
by the nonprofit COVID Collaborative found that fewer than half of Black people
and 66 percent of Latino people said they would definitely or probably take the
vaccine if it was offered free of charge. The survey explored the reasons
behind the hesitancy, which included a distrust in government, with some
pointing to historical injustices.
Employers
that plan to mandate a vaccine may face dilemmas in enforcing the rule. “What
if it’s not just one or two people who refuse to get it, but it’s a whole
bunch? Are you going to fire a material part of your workforce?” Coburn said.
While
employers may be able to draw some lines about who must get the vaccine — such
as those who work directly with customers and those who don’t — implementing a
mandate in piecemeal fashion could prompt some employees to sue for
discrimination.
“If the
repercussion is not across-the-board termination, either you’re going to have a
toothless mandate or you’re going to put yourself in a position where you may
be picking and choosing,” he said.
Offering
employees incentives to get the vaccine may be more effective, some experts
say. David Barron, an employment lawyer with Cozen O’Connor, said clients are
already looking into how they can use wellness programs to reward employees who
take the coronavirus vaccine with gift cards or discounts on health insurance
premiums, much as they would with getting a flu shot or following other healthy
habits.
“Most
large wellness programs have those mechanisms already in place, so you’re
really just piggybacking and adding a covid vaccine in that list,” Barron said.
Even
small nudges could prompt employees to get the vaccine, said Lawrence Gostin,
faculty director of the O’Neill Institute for National and Global Health Law at
Georgetown Law School. A global survey he co-authored found that 61.4 percent
of employees said they would
likely get a covid-19 vaccine if their employer recommended it.
Small
inducements, in some cases, may prove to be more effective than mandates,
Gostin said. Research has shown that forcing employees to sign a form
explaining why they don’t want to take a vaccine may significantly increase
compliance, he said.
“The
more you make them jump through hoops — to sign forms, to make statements — the
more likely they are to just acquiesce,” he said. “The change is the default,
making it harder to say no.”