COVID-19 Town Hall on Vaccines: To Mandate or Not to Mandate? With Dykema

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Now that a COVID-19 vaccine is a reality, many employers are contemplating whether they will be able to require employees to take it when it becomes available to the general population. Like with many other questions about COVID-19, the answer is not clear. But what is clear is that employers can start planning now to ensure the health and safety of their employees.

Dykema’s Elisa J. Lintemuth, member, labor and employment, and Melvin J. Muskovitz, senior counsel, labor and employment offered insight into what employers need to know about this complex issue.

Lintemuth and Muskovitz explained that generally, employers can mandate vaccines if they are job-related and consistent with business necessity and allow for medical exemptions as required by the Americans with Disabilities Act (ADA) and religious objections under Title VII of the Civil Rights Act of 1964 (Title VII).

As far as accommodation requests, an employer may deny an exemption if it can prove that it would result in an “undue hardship,” which regarding religious belief under Title VII means more than de minimis cost or burden, and disability under the ADA creates significant difficulty or expense. Similarly, an accommodation that would pose a direct safety threat to employees or third parties would amount to an undue hardship. Employers could also require an employee to follow different protective measures as an accommodation.

The speakers also shared important liability considerations. It is worth noting that there is a potential for liability whether or not an employer requires employees to be vaccinated. This applies if it requires employees to report to work in person without requiring them to be vaccinated and someone contracts COVID-19 at work; if the employer mandates or encourages vaccination and an employee experiences an adverse reaction to the vaccine; or if an employer denies an employee’s requested accommodation to the vaccine based on a medical or religious objection. Employers should look for updated guidance and weigh the risks based on
their industry, employees, etc.

Practical concerns include employee skepticism and reluctance to receive the vaccine based on factors like the expedited approval process and the vaccine be politicized. Employers should also ensure that vaccine policies are enforced consistently so that employees are treated like similarly situated employees. Whether or not you mandate or encourage vaccination, offer employees a trusted resource to provide knowledgeable, science-based information. To prepare for a workplace vaccination program, consider whether you will provide employees with paid time off to get vaccinated and whether you will require employees to use accrued leave for absences related to an adverse reaction. Lastly, if you are a unionized employer, review your CBA to determine whether this is a permissive or mandatory subject of bargaining.

Lintemuth and Muskovitz wrapped up noting that there is no one right answer – what is right for each employer depends on their industry, their workforce, and the impact of COVID-19 on their business. The best approach is to create a plan, but stay flexible as new guidance is expected to be released over the next several months.


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