As we enter flu season (in the midst of a national spike in COVID-19 cases), and it now appears that a COVID-19 vaccine is on the horizon, employers are struggling with whether they should require employees to be vaccinated for seasonal influenza and/or COVID-19 infection.  After the year that many have had, there is a natural reaction to jump at the idea of mandating vaccinations.  But for employers, there are many considerations that should be taken into account. 

Can Employers Mandate?

The first question employers must consider is: Can they mandate vaccinations of their employees?  In many jurisdictions, possibly, subject to reasonable accommodation obligations under federal, state or local laws protecting employees who are disabled, pregnant or have conflicting and sincerely held religious beliefs.  However, some jurisdictions prohibit or limit employers from mandating employee vaccinations and we suspect that additional jurisdictions may follow.  Therefore, employers should assess and monitor closely local legislation and/or executive orders on this issue.  If the employer’s employees are unionized, it needs to also consider whether the collective bargaining agreement allows it to mandate vaccines or whether it must bargain about the issue with the union.  Public sector employers, and private sector employers in jurisdictions such as California, must also consider whether mandating vaccinations raises additional privacy-related concerns.

Should Employers Mandate?

Even if a company can mandate vaccinations, the more important question is should it?  Companies inevitably will answer this question in different ways and for different reasons.  Among other things, employers likely will want to consider their work environment, whether they are providing care for others who may not be able to vaccinate, the risk of harm to others if they don’t vaccinate, the culture in the environment and the disruption in the workplace if they mandate.  Mandating vaccinations is a hot topic right now.  Some individuals and companies likely will be concerned with mandating vaccinations when the vaccine is new.  Many companies may face resistance from employees, which could lead to employee morale issues, dissension, union organizing or even litigation.  Employers should also consider the potential workers’ compensation or other liability exposure for injuries or illnesses resulting from adverse reactions or side effects from vaccinations it mandates. Employers should first consider whether there is a need for the company to mandate the vaccination (as opposed to the state).  A starting point may be to consider how the company fared during the height of the pandemic when there was no vaccine.  If the company was able to reduce or eliminate the spread with other administrative controls, it may not need to incur the legal and operational risks that come with mandating vaccinations.  Many employees, particularly those who are concerned, or at risk, will seek out the vaccine, regardless of any mandate, which raises the question: Do employers need to mandate, if employees (and customers) can choose to get vaccinated to protect themselves? 

Can Employees Refuse?

Even if an employer mandates that its employees receive a vaccine, it can expect to receive push back from some of its employees.  Some push back may be for political reasons, some may be out of fear, and some may be due to religious or medical concerns.  Employees who collectively object to a term or condition of employment may have protection, at least for their objection, under the National Labor Relations Act.   Employees who object for safety reasons may be protected under the Occupational Safety and Health Act and other state laws.  If employees object due to a disability/medical condition or a sincerely held religious belief, employers will need to consider reasonable accommodations.  There is plenty of guidance on the internet instructing employees how to raise these concerns, which can sometimes lead to the exceptions swallowing the rule. 

What’s An Employer To Do?

This is potentially a divisive issue for employers.  The distraction, dissension, and litigation risks posed by mandating may outweigh the potential benefits.  As an alternative, employers may consider offering the vaccine to employees at no cost, rather than mandating it.  Neither the EEOC or OSHA has published guidance (yet) on the issue of COVID-19 vaccines in the workplace, however, currently, both the EEOC and OSHA recommend encouraging, not necessarily requiring, flu vaccines.  For many companies, particularly those outside the healthcare industry, this may be the best option with respect to COVID-19 vaccines as well. 

Employers who choose to offer or mandate vaccinations should consult with counsel.   Stay tuned, as we expect the states, the EEOC and OSHA to inject their own views as the COVID-19 vaccine becomes available.  The attorneys at Jackson Lewis and our COVID-19 Taskforce are available to assist you as you assess the right approach for your workforce. 

 

Print:
EmailTweetLikeLinkedIn
Photo of Patricia Anderson Pryor Patricia Anderson Pryor

Patricia Anderson Pryor is a Principal and Litigation Manager of the Cincinnati, Ohio, office of Jackson Lewis P.C. She is an experienced litigator in both state and federal courts, representing and defending employers in nearly every form of employment litigation, including class actions.

Patricia Anderson Pryor is a Principal and Litigation Manager of the Cincinnati, Ohio, office of Jackson Lewis P.C. She is an experienced litigator in both state and federal courts, representing and defending employers in nearly every form of employment litigation, including class actions.

Ms. Pryor represents and advises employers in federal and state administrative proceedings, in all forms of dispute resolution, including mediation and arbitration, and in managing all aspects of the employment relationship. She has represented employers before the EEOC, the DOL, the DOJ, the OFCCP, and the NLRB, in addition to various state agencies.

Ms. Pryor also works with employers to avoid litigation by developing effective policies and practices, including harassment policies, social media policies, FMLA practices, attendance programs, affirmative action programs and wellness plans. She conducts proactive wage and hour audits, harassment investigations and compensation/pay equity reviews.

She is a frequent speaker at legal seminars and to employers and professional groups and provides training to managers and human resource professionals on a wide variety of employment and legal issues, including wage and hour issues, harassment, disability, the Family and Medical Leave Act, pay equity and affirmative action obligations. She has been featured on the radio program “Employment Straight Talk” and has published a number of employment law articles.

While attending law school, Ms. Pryor was a member of the editorial board of the University of Cincinnati Law Review.

Learn more about Ms. Pryor on the Jackson Lewis website.

Photo of Francis P. Alvarez Francis P. Alvarez

Francis P. (Frank) Alvarez is a Principal in the White Plains, New York, office of Jackson Lewis P.C. He is the Leader of the Disability, Leave and Health Management Practice Group, which assists employers in meeting the legal and practical challenges posed by…

Francis P. (Frank) Alvarez is a Principal in the White Plains, New York, office of Jackson Lewis P.C. He is the Leader of the Disability, Leave and Health Management Practice Group, which assists employers in meeting the legal and practical challenges posed by federal and state laws protecting injured and ill employees.

Counseling hundreds of employers each year, Mr. Alvarez spearheads the firm’s effort to provide imaginative and creative solutions to the complex array of workplace disability and health management issues faced by both large and small companies. In the Jackson Lewis tradition, Mr. Alvarez counsels clients with the goal of either avoiding litigation entirely or improving outcomes before administrative agencies, courts and juries.

Mr. Alvarez especially enjoys assisting clients conduct the “individualized assessment” required by a growing number of federal and state laws. These efforts include helping employers effectively communicate with employees and medical providers in an effort to evaluate potential risks to health and safety posed by employee injuries or illnesses. In an area of law in which there often are few bright lines, Mr. Alvarez attempts to develop practical and constructive solutions centered on the concept he calls “tc2” — taking care of employees and taking control of risks.

Recently, Mr. Alvarez has begun leading the Firm into another exciting and fast-developing area of workplace law called “health management.” Challenged by increases in health care and work injury costs, employers are searching for innovative ways to motivate employees to participate in wellness and health promotion programs. Mr. Alvarez leads a team of Jackson Lewis attorneys who advise employers on ways to implement these important programs while complying with emerging and largely undeveloped federal and state law protections.

Mr. Alvarez writes and speaks frequently on disability management issues, including legal developments under the Americans with Disabilities Act and the Family and Medical Leave Act. He has delivered presentations at major speaking engagements, including SHRM’s national and legislative conferences. Throughout his legal career, Mr. Alvarez has represented employers as lead counsel in both trial and appellate courts and has successfully tried employment discrimination claims to verdict.

Photo of Katharine C. Weber Katharine C. Weber

Katharine Weber is a Principal in the Cincinnati, Ohio, office of Jackson Lewis P.C. and is a contributor to the Disability, Leave & Health Management Blog. Ms. Weber has experience litigating wrongful discharge cases, managing discrimination cases, negotiating collective bargaining agreements, representing employers…

Katharine Weber is a Principal in the Cincinnati, Ohio, office of Jackson Lewis P.C. and is a contributor to the Disability, Leave & Health Management Blog. Ms. Weber has experience litigating wrongful discharge cases, managing discrimination cases, negotiating collective bargaining agreements, representing employers before the Equal Employment Opportunity Commission and other federal and state agencies, advising management on employment relations, drafting employee handbooks, and negotiating severance agreements.

Learn more about Ms. Weber on Jackson Lewis website.