Now that the rollout of COVID-19 vaccinations has begun many employers will confront the decision of whether to make vaccinations mandatory.
Can Employers Legally Require Employees to Get Vaccinated?
The Equal Employment Opportunity Commission and the Occupational Safety and Health Administration have essentially agreed that employers can mandate that workers receive the COVID-19 vaccine. Previously there had been concern about whether procedures related to giving employees the vaccine would violate medical privacy laws and provisions of the ADA.
Although statements released in the past couple of months have led many employers to feel comfortable about mandating vaccinations, employers aren’t getting a complete carte blanche. The health care providers used by employers to administer the vaccines need to ask certain screening questions before administering the COVID-19 vaccine to ensure there are no medical reasons for which the employee should not receive it.
Also, according to attorney and National Law Review contributor Benjamin E. Widener, to stay clear of violating Federal laws like the ADA, “Employers are advised to consider making vaccinations voluntary or, alternatively, should have a third-party administrator conduct everything with respect to the vaccine. Specifically, if an employer requires its employees to receive their vaccination from an outside provider, like a health care provider or pharmacy, which would be conducting the necessary pre-screening inquiries without any involvement of the employer, the ADA’s restrictions against disability-related inquiries would not apply.”
Workers’ Compensation Pros and Cons
The desire to establish and maintain a safe workplace by requiring vaccinations has several workers’ compensation implications. For one thing, employers will need to pay for mandatory vaccinations and any complications arising from receiving them would be considered compensable injuries.
In some states, like California, “Even if the employer does not mandate the vaccine but encourages it, and the worker suffers a vaccine-related injury, that too could also be considered a compensable injury,” according to attorney Jeff Adelson, partner with the Newport Beach, California, firm Adelson McLean P.C.
Attorney NatasaTimotijevic, an associate in the Chicago office of Goldberg Segalla LLP., pointed out to Business Insurance, that overall there are favorable and unfavorable workers’ compensation aspects of mandatory vaccinations.
Mandating or strongly encouraging employees to vaccinate could result in a lot of workers’ comp cases from adverse effects of the vaccine. On the other hand, in some states like Illinois, where there are presumption laws requiring workers’ comp coverage for any employee contracting COVID-19, the fact that the firm instituted mandatory vaccinations could be a defense against such claims.
“One of the ways that employers can rebut that presumption is demonstrating compliance with public health guidelines in place at time of exposure,” said Timotijevic. If federal guidance encourages vaccination and the employer’s vaccine policy is consistent with those guidelines, it could be one more piece of defense for rebutting those claims, she said.
One Size Shouldn’t Fit All
Employers should also consider the nature of each employee’s work before mandating vaccination. Employers need to come up with a plan that balances the needs and interests of the company with what is in the best interest of the worker.
“Some industries will determine that the vaccine will be mandatory, but companies may also want to have separate policies based on job duties,” according to Gary Pearce, Detroit-based chief risk architect at risk management consultancy Aclaimant. For example, said Pearce in an interview with Business Insurance, the employer could create a vaccination mandate for employees who work in close contact with the public but not those who are able to perform their duties remotely.
“It’s going to be hard to shove a mandate down the throat of people who are working remotely and aren’t exposed … On the other hand, if you have people who work in close proximity, that’s going to make vaccination much more justifiable.”
How to Administer a Vaccination Program
If an employer mandates or encourages vaccinations through its own program it should set up a process for tracking the inoculations according to who, when and where, both for the initial shot and the booster. Alternatively, there should be records of those who signed opt-out waivers for health or religious reasons.
Attorney Adelson suggests that a way to avoid adverse reactions turning into workers’ comp claims is to “provide a few days of paid time off for employees to get the shot and recover. … Another option would be to have telemedicine options available for workers who have an adverse reaction.”
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