COVID-19 vaccines are here, and while many people have waited impatiently for their turn to get the “jab” of one of the three vaccines now approved by the US Food & Drug Administration under their Emergency Use Authorization (EUA) rules, nearly as many people are resisting getting vaccinated for a variety of reasons: religious, health-related, political, or wariness about the safety of these fast-tracked medications. Some of these vaccine resisters may work for you (or be you)?
What are the employer’s rights and responsibilities concerning mandated COVID-19 vaccination programs in the workplace? What rights do employees have if they refuse to undergo vaccinations that may be a term and condition of employment? What does it really mean to be “fully vaccinated”? It’s complicated. Moreover, because the three products approved under the EUA rules are “emergency” drugs, employer mandates will likely be found invalid – at least outside of the healthcare and emergency services sectors – and even the military cannot force vaccines due to provisions in the Geneva Convention!
At the present time, there is no federal COVID-19 standard although the Occupational Safety & Health Administration (OSHA) is scheduled to make a decision in March 2021 on whether to proceed with an Emergency Temporary Standard (ETS) that OSHA could enforce and fine employers up to $136,532 per affected employee. Currently four “state plan states” – Virginia, Michigan, Oregon & California – have enforceable COVID-19 ETSs, and Virginia’s became permanent in January 2021, with all provisions in place by the end of March.
Absent an enforceable rule, federal OSHA and the remaining state plan states have used the “General Duty Clause” or “GDC” (a gap filler where no standard applies, based on Section 5(a)(1) of the Occupational Safety & Health Act) or PPE/respiratory protection and sanitation standards as the citable regulations applicable to COVID-19 workplace transmission hazards. OSHA is not using the GDC pertaining to any vaccination programs at this point, nor do any of the four state COVID ETS’ include any provisions concerning vaccination, even in their “return to work” dictates. Therefore, the issue of mandating worker COVID vaccinations is largely governed by employment law and worker’s compensation considerations at this point – with a side order of tort law possible.
The four state plan states’ ETSs were all enacted before there were approved vaccines so this explains their silence on the issue and their focus on social distancing, different levels of face coverings or actual respiratory protection, doing an analysis of the workplace and triaging it into very high, high, medium, and low risk work sectors, and reliance on the hierarchy of engineering controls (ventilation, barriers), work practice and administrative controls such as remote work or staggered workshifts and breaks, worker training, written hazard control programs, and PPE/face coverings where other respirators are not already being worn.
OSHA as well as the Centers for Disease Control (CDC) suggest that employers should encourage worker vaccines and facilitate this where feasible, but they stop short of calling for mandated vaccine programs. Instead, their guidance outlines the potential benefits to both employers and to workers of offering free on-site COVID-19 vaccines at your business locations. While this may not be feasible for smaller employers at the present time, the approval of the Johnson & Johnson “one dose” vaccine – which also has more feasible refrigeration requirements – makes on-site workplace vaccine programs easier, with the potential for mobile medical van administration in the future.
CDC/OSHA stress the following benefits to workplace vaccination programs:
Potential benefits to employers
Keep the workforce healthy by preventing employees from getting COVID-19
Reduce absences due to illness
Reduce time missed from work to get vaccinated
Improved productivity
Improved morale
Potential benefits to workers
Prevent COVID-19 illness (and potentially death or serious complications from “Long-COVID”)
Reduce absences and doctor visits due to illness
Offers convenience
Improved morale
Where it is not feasible for an employer to offer on-site vaccination clinics, employers can be a vital source of information on where to get free vaccinations for workers, or even offer computer scheduling assistance for workers who may lack those resources at home or who may have language barriers when navigating pharmacy or state websites.
Employers who decide to implement a vaccine program should ensure that they obtain input from legal, HR, labor representatives and management reps (especially where work schedules may be affected either during vaccines or when anticipating possible side effects from the shots), and occupational health providers in the area. In a union workforce, employers cannot unilaterally impose vaccine requirements as these are a term and condition of employment that must be negotiated under the National Labor Relations Act. Other employment issues include payment for the time getting vaccinated, and also potential overtime issues if delays in administration at a public location or pharmacy push a non-exempt worker into more than 40 hours in the workweek.
Worksite vaccine programs should include communication of vaccine information, including a EUA factsheet that CDC provides. Workers must be warned in advance that there may be side effects from the vaccination (especially with the second shot of the two-dose Moderna and Pfizer vaccines), and the importance of actually getting the second shot of the correct product if those vaccines are used – without it, the 90% effectiveness falls to around 50%, and patients should not “Mix and Match” their vaccines in terms of producer.
Ideally paid leave should be offered to workers who opt into vaccine programs but incur side effects that limit their ability to work for a day or two following their shots. This may help overcome resistance that might be wage-based for economically vulnerable workers. Finally, there will be state-by-state decisions as to whether vaccine complications will be compensable under worker’s compensation law, and whether third parties (staffing agency temps, subcontractors) who are inoculated under a host employer’s program and develop side effects will have tort remedies for personal injury.
In summary, workplace policies and administration of COVID-19 vaccines are complex and will require involvement of the safety officer, HR officer, and in-house or outside legal counsel, at a minimum. As an example, from the OHS professionals’ perspective, if a worker objects on safety grounds to getting the vaccine, this may be considered protected activity under section 11C of the OSH Act? Work refusals based on safety concerns are protected, and President Biden’s executive order says that if a worker refuses a job due to health concerns (potentially arising from mandatory vaccines?) the worker will be eligible for unemployment insurance, on top of any relief they might obtain through the OSHA complaint process.
From the HR professionals’ perspective, the analysis focuses more on the civil rights laws – Title VII (religious protections) and the Americans with Disabilities Act (ADA) concerning disability protections. If workers’ genetics put them at greater risk for vaccine complications, then in addition to the ADA, the Genetic Information Nondiscrimination Act could come into play. Both religious refusals as well as those that are disability (or pregnancy) based may trigger “reasonable accommodation” requirements, such as allowing the employee to work remotely until a safe vaccine is available for their needs or a sufficient number of others are vaccinated to achieve “herd immunity” (typically 70-90 percent of the population). Political objections to vaccines are not protected activity in private sector workplaces, where the First Amendment does not apply.
HIPAA issues may also surface if the employer is administering the vaccine on site and doing health screening directly or via a third party who shares the screening criteria with the employer. Currently, the EEOC says that employers can mandate vaccines, but that guidance was issued during the Trump administration and is subject to revision. The EEOC also says that unvaccinated workers are not automatically a “direct threat to safety” to the extent that they could be excluded from the workplace solely on that basis. There also are medical ethics issues concerning “incentivizing” vaccines by paying a bonus or giving a gift card, although some grocery chains and airlines are taking this approach.
The efficacy of the vaccines, long-term, are also unclear give the mutations developing and spreading rapidly in the United States, and on February 8, 2021, the CDC issued guidelines on what fully vaccinated persons should and should not do. Fully vaccinated means both shots of the two-shot vaccines, plus a waiting period of 14 days following the second shot. The CDC guidance states, for non-healthcare settings, that fully vaccinated people can:
Visit with other fully vaccinated people indoors without wearing masks or physical distancing;
Visit with unvaccinated people from a single household who are at low risk for severe COVID-19 disease indoors without wearing masks or physical distancing, and
Can refrain from any quarantine and testing following a known exposure if they are asymptomatic.
However a vaccine does not confer immunity and so fully vaccinated people should continue to:
Take precautions in public like wearing a well-fitted mask and physical distancing;
Wear masks, practice physical distancing, and adhere to other prevention measures when visiting with unvaccinated people who are at increased risk for severe COVID_19 disease or who have an unvaccinated household member who is at increased risk for severe COVID-19 disease;
Wear masks, maintain physical distance, and practice other prevention measures when visiting with unvaccinated people from multiple households;
Avoid medium- and large-sized in-person gatherings;
Get tested if experiencing COVID-19 symptoms; and,
Follow guidance issued by their employers
For now, most workplace vaccine programs will remain optional due to the EUA status, but employers can play a vital role in helping to defeat this deadly pandemic.
