As the Covid-19 vaccine begins rolling out, employers and HR managers have questions about their responsibilities and opportunities related to the vaccine. Everyone is still waiting for guidance from the EEOC, OSHA, and other labor authorities. This post is designed to address employers and employment-related issues surrounding vaccines and other pandemic health and safety matters. This is a dynamic situation, so as guidance emerges, we’ll update the information. Be sure to check out the general consumer information we’ve recently posted for state plans and general questions: Pandemic toolkit: Covid-19 Vaccines, health & safety and more and will update that as more information becomes available.
Should employers require employees to get a Covid-19 vaccine?
The biggest question HR managers have is whether employers can require a vaccine, and if so, should they. According to many employment law attorneys, the answer is yes, but such a requirement might be premature right now. Consider that many private employers who offer health insurance already require flu shots. But even when flu vaccines are mandatory, employers must allow for exemptions to comply with The Americans with Disabilities Act (ADA), Title VII of the Civil Rights Act of 1964 and any relevant state, and local laws. With the Covid-19 vaccine, there are further complexities. Right now, the vaccine is under an FDA “emergency use authorization.” Until a final approval is issues, employers may want to tread carefully. Plus, there is the issue of vaccine availability. At least in first several months, the vaccine will be rolled out on a scheduled basis. Until the vaccine is more widely available, any requirements may be premature.
It’s important to note that the Coronavirus Aid, Relief and Economic Security (CARES) Act mandated that all employer-sponsored health insurance provide coverage with no cost-share for a COVID vaccine.
The best course of action might be to wait for further guidance from federal authorities and to consult with an employment law attorney. We’ve compiled a variety of resources about these issues, which include commentary from employment law attorneys and other HR experts.
Human Resource Executive: 7 questions HR is asking about COVID-19 vaccinations – Willis Towers Watson experts answer timely questions, including: Can employers purchase vaccines? Or require employees to be vaccinated? Should we set up on-site COVID-19 vaccination clinics? Does the vaccine mean that we can do away with masks and distancing?
HR Daily Advisor: Employers Weighing Whether to Make COVID-19 Vaccinations Mandatory – this article cites employment law attorneys on what employers should consider before establishing vaccine policies, among them, how to deal with any refusals.
SHRM: When Employers Can Require COVID-19 Vaccinations (registration may be required for access) – “As COVID-19 vaccines become available, many employers will have a strong case for requiring employee vaccinations, so long as their vaccination policies have certain exceptions, are job-related and are consistent with business necessity, legal experts say.”
Washington Post: Employers start preparing for the coronavirus vaccine with a question: Can we require it?
“For employers, many of which have kept workers home for months, it has opened a complex set of legal and practical issues: Can they require employees to take a vaccine? Should they offer incentives instead to encourage compliance? And what should they do if employees resist?”
Connecticut Employment Law Blog: Compelling Employees to Get a COVID-19 Vaccine in a Pandemic – Daniel Schwartz says that it is “a question that has more layers than you might think.” He discusses some of those layers that employers need to consider.
Employment & Labor Insider: Can employer mandate COVID-19 vaccinations? Robin Shea offers her educated guess: “Yes. Because of the public health crisis caused by COVID-19, all employers (not just health care employers) will be able to require employees to be vaccinated before they can return to the non-virtual workplace.” But she also offers some qualified “howevers.”.
Coronavirus Law Blog –Coronavirus Update 9-1-2020: Vaccines — can an employer require them; should an employer require them? – Jon Hyman says employers can legally require that employees get vaccinated …” But can doesn’t necessarily mean should, and employers should be wary about requiring what employees do with their bodies; instead, employers should be strongly encouraging employees to get the COVID-19 vaccine when they qualify to do so.”
CBS News: Can your employer force you to get a COVID-19 vaccine? Yes (usually) – Among other issues, this article talks about potential employer liability: “Employers will be protected from liability should an employee develop side effects from a vaccine, according to lawyers. Any claims would likely be considered on-the-job injuries and be funneled through worker’s compensation programs. Also, employers themselves won’t actually administer the vaccine — they’ll enlist pharmacies and other health care providers.”
FMLA Insights: Can Employers Require that Employees Receive a COVID-19 Vaccine Before Returning to Work? – Jeff Nowak comes down on yea, but with caveats. He says that “even if employers had the green light to require a COVID-19 vaccine before returning to work, they still have an obligation to consider accommodations based on religious beliefs and disabilities.”
HR Executive: COVID vaccine: What to know about compliance, communication and more – Now is the time for employers to start creating written guidelines, experts say.
HR Executive: HR’s next big job: Convincing employees to get COVID vaccines – Employers are seen as allies in the distribution and encouragement of coronavirus vaccines. But with some employee skepticism, how can they succeed?
OtherCovid-19 workplace news, opinions, and tools
- HR Daily Advisor: Federal Rules Impose Strict Deadlines for Health Plans to Cover COVID-19 Vaccines
- Littler: Facing Your Face Mask Duties – A List of Statewide Orders
- Littler: Employee Temperature and Health Screenings – A List of Statewide Orders
- Littler: Statewide Reopening and Mitigation Steps
- Washington Post: 8 facts about the coronavirus to combat common misinformation
- Pew Research: Intent to Get a COVID-19 Vaccine Rises to 60% as Confidence in Research and Development Process Increases
- HR Daily Advisor: To Wear, or Not to Wear: Managers’ Compliance With Face-Covering Mandates
- HR Daily Advisor: EEOC Addresses Telework as Reasonable Accommodation
- FMLA Insights: Can an Employer Lawfully Deny a Bonus to an Employee Who Takes FMLA or FFCRA Leave?
- HR Bartender: Can Companies Mandate Employees Return To the Workplace During COVID-19
- HR Bartender: Bookmark This! 9 COVID Resources You Might Want to Keep Handy
- EHS Daily Advisor: OSHA Whistleblower Charges Surge During COVID-19
- HR Web Cafe: Covid19 highlights importance of an Employee Assistance Program, mental health benefits
- See all prior HR Web Cafe posts related to the Coronavirus pandemic