A new chapter is being written in the COVID-19 story as vaccines begin rolling out to help fight the pandemic. The U.S. Food and Drug Administration issued an emergency use authorization for several vaccines, providing hope that we may be seeing the light at the end of a dark tunnel. This is also creating more questions, especially for many organizational leaders as they maneuver the tricky landscape of legal considerations related to the vaccines and their workforce.
The main question many employers have been trying to understand is if they can legally require an employee to be vaccinated.
"Mandatory vaccination is not a new issue," says Yoora Pak, a partner at the nationally recognized law firm Wilson, Elser, Moskowitz, Edelman & Dicker LLP (Wilson Elser). "Some employment sectors have been dealing with it for years in the context of the flu vaccine. However, the global crises resulting from the coronavirus coupled with the moment we find ourselves in has brought new urgency to the issue."
According to the Equal Employment Opportunity Commission (EEOC), employers can require employees to be vaccinated as long as the employer complies with:
the Americans with Disabilities Act (ADA) and the Rehabilitation Act (which include the requirement for reasonable accommodation and non-discrimination based on disability, and rules about employer medical examinations and inquiries);
Title VII of the Civil Rights Act (which prohibits discrimination based on race, color, national origin, religion, and sex, including pregnancy);
the Age Discrimination in Employment Act (which prohibits discrimination based on age, 40 or older); and
the Genetic Information Nondiscrimination Act (GINA).
In December, the EEOC updated their publication, "What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws." It now includes a section that provides information to employers and employees about how vaccinations should be considered in terms of employment.
"If an employer decides to implement a mandatory vaccination policy, there are a number of issues to consider," Pak explains. These issues can include:
Reasonably accommodating an employee's objection to the vaccine based upon religious beliefs
Ensuring that incentive programs are not discriminating against employees on a protected basis
Wage hour issues for compensating employees for time off to get the vaccine or to reimburse for any expenses
In an effort to provide more detail and answer additional questions, we hosted webinars in partnership with Wilson Elser for our policyholders that have employment practices liability insurance through PHLY and their agents. The webinar recordings are available for PHLY agents and policyholders to access through MyPHLY. Policyholders and agents can register here for a MyPHLY account. PHLY policyholders will need their account number and policy number, while agents will need their FEIN and agency number.
Resources:
EEOC Releases Updated Guidance on COVID-19 Vaccinations and Employment Laws (insurancejournal.com)
COVID-19: An Employer's Role in Vaccination (The National Law Review)