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Attorneys advise on crafting COVID-19 vaccination policies

Legal News Reporter

Published: January 15, 2021

With the initial round of COVID-19 vaccinations now taking place across the country, some labor and employment attorneys in Ohio are advising employers to begin thinking about how they plan to handle the issue in their workplaces when vaccines become widely available.
As Roetzel & Andress shareholder Karen Adinolfi explains, while it’s still early in the distribution process, businesses should make a conscious decision as to whether they will encourage, provide and/or mandate employee vaccinations.
“There are a number of factors to take into account before crafting a policy,” said Adinolfi, who focuses on employment law matters.
At the top of the list, said Adinolfi, staying abreast of and adhering to all laws pertaining to mandatory vaccination policies.
On Dec. 16, 2020 the U.S. Equal Employment Opportunity Commission posted updated guidance that addresses a number of employer questions related to the COVID-19 pandemic, including vaccinations.
Entitled “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws,” the publication includes a new section about how a COVID-19 vaccination “interacts with the legal requirements” of the Americans with Disabilities Act (ADA), Title VII of the Civil Rights Act of 1964, the Genetic Information Nondiscrimination Act (GINA) and the Pregnancy Discrimination Act, including issues related to medical pre-screening and employer accommodations.
Of key importance, said Adinolfi, the guidance indicates that a vaccine is not considered a “medical examination,” and therefore is not covered by the Americans with Disabilities Act.
As a result, Adinolfi said employers can choose to require their employees to obtain the vaccine, “with some caveats, such as providing reasonable accommodation for employees with a disability or with a sincerely-held religious belief that would prohibit them from receiving the vaccine.”
Charles Billington, a partner in the labor and employment group at Vorys, Sater, Seymour and Pease said although the message from the EEOC is fairly clear, there are a number of other provisos that extend beyond making reasonable accommodations for disabilities and strongly-held religious beliefs.
“In instances where the employer sponsors the mandatory vaccination, meaning they directly contract with a provider to administer the vaccine, any pre-screening questions would constitute a ‘medical examination’ under the ADA and warrant further scrutiny,” said Billington.
“This issue can be avoided, where an employer requires employees to be vaccinated but does not contract directly to provide the vaccine and isn’t involved in, or privy to, the pre-screening process. In that case, employers can just request proof of vaccination from employees without running into ADA issues relative to pre-screening questions.”
While the new guidance is on the employer’s side, Billington said there are other important questions to consider before deciding whether to require workers to get vaccinated.
“For example, how will a mandatory vaccination policy impact employee morale? Could it create employee relations issues? Is an employer prepared to terminate anyone, including an executive, who refuses to adhere to the policy without a legal justification, like an accommodation?
“Any such policy would need to be uniform and making an exception for an executive could create legal problems for the employer,” said Billington.
“Businesses should also be prepared that a good chunk of the population might simply refuse a mandatory vaccination based on political or personal views,” said Billington. “If a half of your workforce refuses to get vaccinated on personal grounds, which tracks with current public opinion on the vaccine, is the employer prepared to terminate that much of its workforce? I think not.
“Further, if an employer does implement a mandatory policy when can it logically begin? What if you mandate vaccinations at a certain date and they are not widely available?”
With those issues in mind, Billington said he’s advising his clients to closely watch the issue and start planning, but to be mindful of the constantly evolving nature of the situation.
“In COVID time, the summer of 2021, when the vaccine is thought to be widely available, might as well be 10 years out,” he said.
In addition, Billington said a mandatory policy could attract the attention of union organizers, seeking to galvanize workers at non-union shops where employee sentiment toward mandatory vaccinations is negative or where employees feel they did not have a voice in the decision-making process.
Further, he said companies would need to address the question of how to handle clients and other visitors, who are not covered by the policy.
“I’m telling my clients to follow the Jurassic Park principle when thinking about mandating vaccines: ‘Just because you can, doesn't mean you should.’”
“Unless you are clearly in an industry where vaccinations are necessary, like healthcare, a voluntary policy with education about the benefits of vaccination and some form of incentive program seems like the way to go right now.”
Adinolfi agrees. In fact, she said she’s advising her clients to consider incentivizing vaccinations as part of a broader wellness program.
“An employer could offer a credit on health insurance premiums to those who get the vaccine, or perhaps, if not too cost prohibitive, offer the shots on premises the way some businesses currently do with the flu vaccine,” said Adinolfi.
“Given the volatile nature of the pandemic and the increasing pushback over requirements such as mask-wearing, I would say that mandatory vaccination policies pose risk in the current environment.”
Billington said employers should also disabuse themselves of the notion that vaccinations will allow for a return to the pre-pandemic workplace.
“It is likely employees will continue to wear masks and social distance well into 2021 even if they do get vaccinated,” said Billington. “I think the best we can hope for is that with encouragement and education, enough employees will choose to get vaccinated to provide some degree of widespread protection.”