Should Employers Mandate the COVID-19 Vaccine?

February 16, 2021
covid-vaccine-workplace

The FDA has authorized the emergency use of COVID-19 vaccines from Pfizer-BioNTech and Moderna. States have been busy distributing the vaccines, which are currently in limited supply, and some essential workers may be among the groups given priority access. Many employers are considering the best strategy to get workers vaccinated, possibly including a mandate.

COVID-19 Workers’ Comp and Liability

Employees who contract COVID-19 may file for workers’ compensation, and some states have issued orders or passed legislation to make these claims easier. The National Conference of State Legislatures says that 17 states and Puerto Rico have extended workers’ compensation to include COVID-19. In some states, the extension only applies to certain workers, such as healthcare workers, but other states – notably California – have passed broader presumptive liability rules.

At the same time, rating bureaus will be excluding COVID-19 claims from experience modification ratings, which may create work comp insurance pricing uncertainty. With this uncertainty, underwriters may take an even closer look at each company’s safety policies and practices to formulate an account’s workers’ compensation insurance pricing.

In addition to the potential for workers’ compensation claims, businesses may also face the risk of lawsuits and business interruptions if an outbreak occurs. This makes getting everyone vaccinated a top priority. However, there are pros and cons. While mandatory vaccines could prevent some workers’ compensation claims, they could also cause some workers’ compensation claims, according to Business Insurance.

OSHA Recommendations and Employee Sentiment

In its current guidelines, OSHA recommends making a COVID-19 vaccine available to eligible employees at no cost, as well as providing information on the benefits and safety of vaccinations.

This second point may be especially important. According to Medscape, recent a survey found that approximately one-third of healthcare workers are unsure about getting the COVID-19 vaccine. A map posted on Bloomberg Law illustrates the COVID-19 vaccine acceptance rate by state.

EEOC Guidelines and Mandatory Vaccines

Some employers may decide that the most straightforward way to get workers vaccinated is to mandate the vaccine. While this approach may work, employers should also expect some pushback.

Employees may request exceptions to the vaccine requirement based on disability or religious beliefs.  When creating vaccine policies, employers should be aware of how these policies might conflict with various regulations, including the ADA and Title VII.

In its page on COVID-19 and EEO laws, the EEOC has included a section on ADA and Title VII issues regarding mandatory vaccines. Several obligations and requirements are outlined, including the following:

  • If a vaccine requirement screens out individuals with a disability, the employer must be able to show that an unvaccinated employee would pose a “significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.”
  • If a worker states that the vaccine goes against religious beliefs or practices, “the employer must provide a reasonable accommodation for the religious belief, practice, or observance unless it would pose an undue hardship under Title VII of the Civil Rights Act.”

Alternative Approaches

Instead of mandating the vaccine, some employers may simply encourage the vaccine by providing it free of charge.

Other employers are going one step further and paying employees to get the vaccine. The Wall Street Journal reports that Dollar General will offer its workers a bonus to get the vaccine. CNN says that a Houston hospital has also offered a bonus to employees to get vaccinated. This approach could be effective at encouraging many employees to get vaccinated quickly, although it probably won’t sway many employees who are seriously opposed to the vaccine for various reasons.

If you’re finding yourself lost in the sea of confusing and complicated recent COVID-19 regulations, join our national or California-specific, COVID-19 in the workplace webinar, for a live session to explain, clarify, and help make sense of your obligations to maintain a safe workplace.