Commentary from Counsel - COVID-19 Vaccine Will Force Employers to Make Tough Decisions

As governments and pharmaceutical companies race to develop a safe and effective COVID-19 vaccine, employers must begin to consider how their companies will react to the drug. Considerations related to a potential vaccine run the gambit, including everything from politics to health to religion. The policies a company implements once a vaccine becomes widely available could have enormous financial and legal implications. Thus, your agency should start developing strategies now for both how to advise clients and how to manage your own organizations after the vaccine race reaches the finish line.

As employers manage returns to the workplace, they will have to determine whether to force their employees to be inoculated once a COVID-19 vaccine is available. In making these determinations, employers will have to ensure they do not run afoul of either the Americans with Disabilities Act or Title VII of the Civil Rights Act. Both of these laws are enforced by the U.S. Equal Employment Opportunities Commission (EEOC). The EEOC previously issued pandemic response guidance while the country was in the throes of fighting the H1N1 virus more than a decade ago. Recently, the EEOC updated that guidance document to account for difficulties employers are facing due to the novel coronavirus. As was the case in response to H1N1, the EEOC will allow employers to mandate COVID-19 vaccinations for their employees. However, companies must allow for religious and medical exemptions. Thus, given the difficulties associated with determining whether an employee satisfies the criteria for an exemption, the EEOC is recommending employers simply encourage their employees to get a vaccine. Importantly, the revamped guidance expressly notes that a COVID-19 vaccine was not available at the time the updates were made, indicating they could be subject to change.

Employers should consider more than just the EEOC’s guidance when considering whether to mandate vaccinations. To start, some states do not allow employers to force employees to be vaccinated. Others allow mandatory vaccination but have expanded allowable exemptions to include political objections. While Wisconsin does not have a law prohibiting employers from mandating vaccinations, several lawmakers have attempted to do so in the past. Vaccines also raise liability concerns for employers. For instance, if a company forces its employees to be vaccinated and an employee becomes ill as a result, that could open the company up to a lawsuit. Further, coronavirus-related policies, like mandatory vaccines or mask-wearing, may result in certain employees being harassed for personal decisions related to the virus. This, too, can raise liability concerns for companies.

It is critically important for your agency to begin preparing its vaccine response now, so as to be ready if and when the drug becomes widely available. This is especially true for the impending impacts a vaccine may have on insurance coverage. To start, health insurers may be offering incentives for employers to require their employees to be vaccinated against COVID-19, or even just to offer the immunization on-site. Workers’ Compensation insurers may be offering similar incentives, given the health risks employees face when congregating in the office. However, CGL and EPL carriers may be concerned with the potential for increased liability due to risks created by forced vaccination, including everything from personal injury to workplace harassment suits. Further complicating the matter, as suggested above, it is entirely possible that the EEOC may amend its guidance once coronavirus immunizations are widely available. Ultimately, a vaccine may impact a large swath of the policies your agency sells to its clients. As a result, it is crucial to work with legal counsel to understand the legal risks and benefits associated with workplace immunization policies. That knowledge will help you better advise clients and implement guidelines within your own agencies.