COVID-19 Vaccines and the Workforce - Mandatory or Encouraged?
By Ruth Binger, Danna McKitrick and Member of the Board of Directors, Associated Industries of Missouri
Getting back to normal in the next year or so may be impossible without the widespread use of COVID-19 vaccines. Although authorities do not anticipate the vaccines will be widely available until Spring 2021, employers should be considering whether to mandate or merely encourage vaccinations in the workforce.
Currently there is no definitive answer regarding mandatory vaccinations, and your plan will depend on many variables. Because this is the first pandemic in our memory and it is all new to us, consider forming a committee to monitor the status of laws, regulations, and guidance from various agencies.
Your business may be one of the lucky ones that navigated the pandemic without causing a loss of morale or culture, operating safely by working remotely, social distancing, wearing masks, and following CDC requirements. If so, setting aside all other factors, you may simply want to encourage vaccinations for the first few months that they are available, especially given potential concerns about the safety and efficacy of the vaccines and the ever-changing laws. You could do this by training and educating employees as to the efficacy of the vaccine, encouraging participation, and offering the vaccine for free (if not covered by insurance) at the workplace during work hours.
Or, mandatory vaccinations may already be decided for your business, especially if you are in an industry that provides care for others or cannot effectively social distance, e.g., health care. The Occupational Safety and Health Administration (OSHA) has not issued specific COVID-19 vaccination guidance but could under the General Duty Clause.
Both the Equal Employment Opportunity Commission (EEOC) and OSHA encourage but do not mandate flu vaccines in the workplace. Whether the agencies will follow this approach with COVID-19 vaccines will depend heavily on the harshness of the winter and a spike in cases. All industries are subject to federal laws and state laws requiring employers to reasonably accommodate employees who may not want to vaccinate because of disability, pregnancy, or conflicting religious beliefs. Mandatory vaccinations are also a mandatory subject of bargaining if you have a union contract. Finally, there will be new executive orders from governors as to COVID-19 vaccination mandates. State and local
legislators in Missouri are busy considering enacting protections for those who do not want to
With respect to liability, if an employer has a mandatory vaccination policy and there are vaccine side effects (i.e., workers’ compensation claims), there may be liability immunity to the employer under the Public Readiness ND Emergency Preparedness Act (PREP Act). Under the PREP Act, if employers follow the directions for administration of the COVID- 19 vaccine approved by the FDA and do not engage in willful misconduct, the government picks up the loss or claim and operates a fund of last resort.
Consult with your legal counsel regarding your COVID-19 vaccination policy as there are too many moving pieces here to give more concrete guidance.
Ruth Binger serves both emerging and mature businesses concentrating in corporate law, intellectual property and technology law, cybersecurity, digital media law, and labor and employment law. Her commitment to the success of small to medium-sized businesses, and her understanding of multi-faceted issues inherent in operations, are what distinguish Binger's practice.