Summary List Placement
With the prospect of a coronavirus vaccine drawing sooner than many had initially expected, labor and employment lawyers are seeing a surge in clients asking the same question: Is it legal to make workplace COVID-19 vaccinations mandatory?
Pharmaceutical companies Pfizer and Moderna have both said that their vaccines are about 95% effective. And the vaccine developed by AstraZeneca and the University of Oxford was found to be highly effective, according to late-stage trial results announced Monday.
Pfizer applied for emergency authorization for its vaccine on Friday, and it could be available by mid to late December if regulators sign off on it.
Employers are already considering their next steps — and are turning to attorneys for legal advice.
L&E lawyers told Business Insider that they’ve been fielding a couple of calls every day from clients, ranging from white-collar workplaces to healthcare companies, specifically about the question of whether they can make coronavirus vaccinations mandatory for their employees.
Jimmy Robinson, managing shareholder at the L&E firm Ogletree Deakins’s Richmond office, said that seven different clients reached out to him on one day with that concern.
“They all want to make sure they’re taking care of their workforce,” he explained. “They want to protect their biggest asset: not the product, but the people.”
Recognizing the rise in demand for legal advice surrounding the vaccine, Ogletree has formed a vaccination task force dedicated to providing consolidated advice across the firm’s 54 offices, similar to the coronavirus task force it had launched over the past year, said Robinson.
So can you make a coronavirus vaccination mandatory at the workplace?
The most common question that clients are asking: Can you make it mandatory for employees to get a coronavirus vaccine?
The short answer is yes, though there should be medical and religious accommodations in place, said Robinson. He added that the requirements surrounding accommodations may vary from state to state, and court to court.
That said, employers must also meet one of the standards under the Americans with Disabilities Act, according to Karla Grossenbacher, chair of Seyfarth Shaw’s L&E practice in Washington, DC.
Under the ADA, employers can require medical examinations and vaccinations from their employees if it is necessary for their profession — as is the case with some healthcare workers, for example — or if it poses a “direct threat” to the health and safety of the individual should they be exempted, Grossenbacher explained.
While the Equal Employment Opportunity Commission, the federal agency that enforces civil rights laws against workplace discrimination, has designated COVID-19 as a direct threat, allowing employers to mandate temperature checks, mask wearing, and social distancing measures, it has yet to issue any similar guidance when it comes to coronavirus vaccinations.
Though the EEOC previously issued guidance on the flu vaccine, recommending that employers simply recommend that employees get vaccinated rather than requiring it, the “direct threat” standard and the severity of the COVID-19 pandemic may change that, depending on what we end up learning about the vaccines, said Grossenbacher.
Michael Roche, who leads the labor and employment practice at Winston & Strawn, said he anticipates most companies will strongly encourage employees to get vaccinated, but not require it. Besides the administrative burden of complying with the requirements of the EEOC and the Occupational Safety and Health Administration, he noted that requiring a vaccine might subject an employer to liability for side effects or adverse reactions.
Clients are also asking questions about more immediate pandemic concerns
It may still be months before vaccines are available for everyone who wants them, however, and employers have other pressing questions.
If vaccines from both Pfizer and Moderna get authorized, about 20 million people in the US could get vaccinated by January, and more in the following months, only a fraction of the estimated US population of 330 million.
Thomas Wassel, a partner at the law firm Cullen and Dykman on Long Island, said questions about mandatory vaccination haven’t started rolling in yet, but his clients are asking what to do about employees who are afraid to come to work and worried about the possibility of contracting the coronavirus on public transit.
In many cases, he said, employees must come to work, although he noted that federal and state laws created new rules around sickness leave and caretaking leave that cover many employers.
More imminently, said Nathaniel Glasser, a partner at Epstein Becker Green, clients are asking whether and to what extent they can restrict their employees from attending big gatherings like Thanksgiving and Christmas celebrations. Public health experts have warned that festive gatherings of people who don’t live together, especially indoors, pose a high risk for COVID-19 transmission.
“It’s becoming a big, big question,” Glasser said.
There’s also a slew of other questions related to vaccinations, said Ogletree’s Robinson, like who’s going to pay for the vaccines, whether employers can request that employees disclose whether they do get vaccinated to determine who can safely return to the office, and whether preventing someone from doing so on the grounds that they did not get vaccinated poses a liability risk for the employer.
A very likely uptick in work for labor & employment lawyers given the many unknowns
Like many things about the coronavirus, there still remains a lot of unknowns with the vaccines.
“There are a whole host of questions that haven’t been answered yet,” said Guy Brenner, a partner who leads Proskauer’s L&E practice in Washington, DC. “Before we even get to the legal analyses, we have to know the facts: Will the vaccines be widely available? Can employers have access to it?”
This is especially the case since legal advice requires a case-by-case, fact-specific determination, depending on circumstances like the particular job and the contours of the vaccines, explained Brenner.
There’s also a political unknown that could come into play, too, Brenner added, who sees how a different administration under President-elect Joe Biden might issue more detailed guidance on safety and workplace, such as those regulated by the Occupational Safety and Health Administration, or OSHA. New or stricter legislation will invariably have to be factored into employers’ vaccination policies.
All this means that L&E lawyers are likely going to be having their hands full in the coming months.
“As new laws are put in place across the country, clients are going to need help ensuring they meet those rules and guidelines,” said Robinson.