Are Mandatory Vaccines the Solution to Staffing?

It has been just over one year since the first case of COVID-19 was confirmed in the U.S. In the ever-evolving, unprecedented wake of the global pandemic, employers across the country have struggled with how to best manage a host of competing, and sometimes conflicting, interests. Balancing employee wellbeing, productivity, customer safety, long and short-term operational concerns, and the “bottom line” is challenging. Fortunately, the U.S. Food and Drug Administration’s approval of the use of COVID vaccines on December 12, 2020 may represent a proverbial light at the end of the tunnel for the American workforce. While the vaccine brings hope of a long-term solution to COVID, it also presents new questions for how employers should move forward in the immediate future.

Can employers require their staff to receive the COVID vaccine?
The short answer to this question is yes, employers can mandate that their staff receive the COVID vaccine when available. On December 16, 2020, the Equal Employment Opportunity Commission (EEOC) announced that employers can mandate the receipt of the COVID vaccine for their staff without violating the Americans with Disabilities Act (ADA). In fact, for quite some time the EEOC has allowed companies to mandate vaccines (e.g., healthcare workers required to get FLU shots). It is important to note that “requiring” a vaccine may mean that employees that refuse have to sign waivers and/or work in certain conditions that limit the risks associated with vaccine refusal. Also, employers that mandate vaccines will still need to allow exemptions for valid disability or religious reasons. Employers will be required to make reasonable accommodations for those who utilize these exemptions.

Although allowed, should employers mandate the COVID vaccine?
Unfortunately, there is no simple answer to this question. Employers will need to weigh several factors in deciding whether to mandate vaccines. Employers should reflect on how their staff responded to prior COVID response measures. Staff that opposed prior restrictions, such as wearing masks or implementing social distancing, are likely to oppose a mandatory vaccine. Additionally, employers who mandate a vaccine will need to spend resources in developing and utilizing a program to track employee compliance, which could prove difficult for employers with limited human resources capabilities. Finally, employers must consider the risk that opposing staff members might take legal action in response to a vaccine mandate. Ultimately, employers will need to conduct their own cost/benefit analyses to determine if mandating a COVID vaccine is the right decision for them. Employers may find that fervently encouraging a vaccine may accomplish their goals while alleviating most of the potential pitfalls of a vaccine mandate.

Are there other COVID-related practices employers should be aware of?
As the Centers for Disease Control and Prevention (CDC) accurately states, “Businesses and employers can play a key role in preventing and slowing the spread of SARS-CoV-2 within the workplace.” For those employers that are looking for additional advice in keeping their employees and customers safe, we recommend that they consult with an attorney in order to ensure any policies that they implement are compliant. By implementing the right policies and procedures to keep staff healthy and productive, employers can be leaders in the recovery of our nation.

If you have any questions about employer-mandated vaccines or employment law in general, please contact attorney Theodore M. McGinn at tmcginn@lavellelaw.com or 847-705-7555.