Early this week, trucks carrying the first doses of the COVID-19 vaccine began arriving at distribution points throughout United States.
Anticipating this distribution and appearing before the Michigan legislature’s Joint Select Committee on the COVID-19 Pandemic earlier this month, Michigan Department of Health and Human Services Director Robert Gordon said that the agency is not considering a statewide coronavirus vaccine mandate. Nonetheless, many employers wonder whether—and when—their companies can require employees to take advantage of the vaccine.
There is currently no law or regulation directly addressing whether employers may mandate vaccination for COVID-19, but employers can gain some insight from companies’ ability to mandate the flu vaccine. Generally speaking, the Equal Employment Opportunity Commission (EEOC) does not prohibit employers from mandating the flu vaccine, as long as such requirements are job-related and consistent with business necessity. Mandatory vaccination policies are controversial, particularly outside the health care industry, and the EEOC has stated that “generally, ADA-covered employers should consider simply encouraging employees to get the influenza vaccine rather than requiring them to take it.”
Once the COVID-19 vaccine becomes widely available, employers should consider their options and policies carefully, keeping in mind the following:
- Realize if an employee objects to the vaccine for religious reasons, the employer will need to explore what reasonable accommodations it can provide, absent undue hardship.
- Similarly, if an employee declines vaccination due to a medical condition or disability, the employer must engage in an interactive process with the employee to identify reasonable accommodations, if any.
- Discuss policy with applicable insurance carrier before implementation to address coverage in the event that an employee becomes ill.
- Explore options to increase liability protections such as a waiver or release in case a vaccinated employee has an adverse reaction, and what consideration will support the waiver or the release.
- Consider whether the employer will cover any costs connected to administering vaccination and how this will integrate with employer-provided health plans.
- Evaluate whether to provide additional paid leave to employees who receive the vaccine and become ill or need days off from work to recover.
- Review and update job descriptions to include essential functions that may relate to COVID-19 risk, such as travel requirements, customer or patient interaction, and close contact with other employees.
- For unionized workplaces, consider whether a mandatory vaccination policy will be a mandatory subject of bargaining.
- Develop a vaccination policy and procedure for requesting accommodation for religious or medical reasons.
As the vaccine becomes more widely available, Varnum will continue to monitor relevant legislation and guidance. Please contact any member of Varnum’s Labor and Employment team to discuss how these considerations affect your workplace.