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Vaccine Mandates and Employment Practices Liability

With front-line healthcare workers already receiving COVID-19 vaccines, plans in place for successive phases of vaccination, and organizations of all kinds hoping for a mid- to late-spring return to normalcy, employers everywhere are asking the same questions:

  • Should my organization mandate employee vaccination?
  • What happens if an employee refuses to comply with a vaccination mandate?

“Without exaggerating, this is the most consequential employment issue of our lifetime because it affects every employee in this country,” Quinnipiac University School of Law adjunct professor Michael Soltis told Property Casualty 360. “To the extent that this virus is passed through asymptomatic individuals, that means decisions affect not only the employee but also the employee’s family, friends and other contacts. It has the potential to affect 300 million people in this country.”

So, case closed, right? Mandatory vaccination for all employees once vaccines are available to them?

Not so fast.

Even if federal, state or municipal mandates for COVID-19 vaccines were in place – and none currently are – employers would likely face challenges involving employment practices liability, including the American with Disabilities Act (ADA).

Answers from the EEOC

The U.S. Equal Employment Opportunity Commission (EEOC) this week expanded an already extensive Q&A webpage with the appropriately lengthy title “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws.”

According to the EEOC:

“The ADA allows an employer to have a qualification standard that includes ‘a requirement that an individual shall not pose a direct threat to the health or safety of individuals in the workplace.’  However, if a safety-based qualification standard, such as a vaccination requirement, screens out or tends to screen out an individual with a disability, the employer must show that an unvaccinated employee would pose a direct threat due to a ‘significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.’”

You’ll find that passage in Section K.5. of the EEOC page, which includes these topics:

  1. Disability – Related Inquiries and Medical Exams
  2. Confidentiality of Medical Information
  3. Hiring and Onboarding
  4. Reasonable Accommodation
  5. Pandemic – Related Harassment Due to National Origin, Race, or Other Protected Characteristics
  6. Furloughs and Layoffs
  7. Return to Work
  8. Age
  9. Caregivers/Family Responsibilities
  10. Pregnancy
  11. Vaccinations

Other Potential Challenges

The aforementioned Property Casualty 360 article, “What employers need to know about COVID-19 vaccinations, compliance,” reports that experts believe employees refusing a vaccine due to a disability or religious reasons may have firm grounds while those objecting for other reasons would have a weaker case. The piece also notes that businesses that don’t mandates would be vulnerable to a lawsuit if an employee with COVID-19 spread the disease in the workplace. Federal guidance, beginning with the Centers for Disease Control and Prevention (CDC) would help, Quinnipiac professor Soltis told the publication.

University of California Hastings College of the Law professor Dorit Reiss supported the notion that a public mandate would make life easier for employers, telling the Boston Globe, “Generally states have pretty broad power to step into the public health arena even if they’re stepping on individual rights. That’s the basis for a lot of measures we’ve already seen for COVID-19, such as masks and stay-at-home mandates.” You’ll find Reiss’ comments, as well as a look at a Supreme Court ruling that affirmed the right for local governments to require vaccines by law, in “Eventually, getting the COVID-19 vaccine could be required for many.”

For now, most business leaders are taking a wait-and-see approach, though a recent virtual summit conducted by the Yale Chief Executive Leadership Institute indicate strong support for employer-mandated vaccination. CNN reports that during the summit, “Seventy-two percent of current and recent CEOs of major companies signaled an openness to vaccine mandates.”


About the Author

Danielle Capilla

Alera Group Vice President of Compliance, Employee Benefits

 

Danielle Capilla’s areas of expertise include health care and employee benefit compliance, with an emphasis on the Patient Protection Act and the Affordable Care Act. Additionally, she regularly works with issues regarding Section 125 plans, COBRA, ERISA, Medicare, HIPAA and consumer-driven health care plans. Employee Benefit Adviser included her among its Top Women in Benefit Advising for 2020.

Disclaimer: The information contained herein should be understood to be general insurance brokerage information only and does not constitute advice for any particular situation or fact pattern and cannot be relied upon as such. Statements concerning financial, regulatory or legal matters are based on general observations as an insurance broker and may not be relied upon as financial, regulatory or legal advice. This document is owned by Alera Group, Inc., and its contents may not be reproduced, in whole or in part, without the written permission of Alera Group, Inc.

This article was last reviewed and up to date as of 12/18/2020.

 

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