It may be useful to examine current best practices that employers should keep in mind as COVID-19 vaccines become available, generally, and become available in your specific industry. In the past, industries like health care and child care have been permitted to mandate vaccines for their employees.
It is a safe assumption that precedent could be used for other industries when dealing with the newly released COVID-19 vaccine. That said, regardless of the ability to mandate a vaccine or the decision to mandate a vaccine, it will likely still be a case-by-case analysis as to whether that is the proper decision for your workforce. Employers should expect pushback for some employees if they mandate a vaccine – both generally and in the form of health and religious exemptions cited by employees.
To date, neither the EEOC nor OSHA has issued specific guidance regarding a COVID-19 vaccine. However, EEOC guidance in 2009 stated that employers could require workers to get the flu vaccine as long as reasonable accommodations were provided to people with disabilities or religious objections. It is expected that the EEOC and OSHA will issue similar guidance for the COVID-19 vaccine but, again, that will not change the fact that employers may still face pushback and litigation from workers who refuse to get it.
At this point, employers have been allowed to require COVID testing, and employers are permitted to inquire with employees as to whether or not they are feeling symptoms. It would not seem to be too much of a stretch for the guidance to permit employers to require a vaccine. As a result, companies should take this time now, even in advance of formal guidance, to discuss whether or not they want to mandate the vaccine (if allowed) or simply strongly recommend its employees receive the vaccine. Also, begin internal discussions as to how you are going to handle employee communications, employees who refuse without a justification and employees who refuse citing health or religious exemptions.
However, even if your employees receive the vaccine, this does not in any way end employers' obligations as to state and federal mandates and recommendations related to masks, social distancing, and quarantine and isolation period for positive or exposed employees. These mandates and recommendations will likely remain in place during most, if not all, of the vaccine roll-out period, which is expected to last through the winter and into the spring.
If you have any questions related to this issue, please contact the Labor and Employment Attorneys at KWGD at 330.497.0700.
NOTE: This general summary of the law should not be used to solve individual problems since slight changes in the fact situation may require a material variance in the applicable legal advice.