Assessing Employer Vaccine Mandates

Alex Maza

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April 1, 2022

Assessing COVID-19 Vaccine Mandates

In January, the U.S. Supreme Court decided to block the federal COVID-19 vaccine mandate for large employers, leaving some companies celebrating and others questioning how to proceed. The blocked mandate would have dictated that all businesses with more than 100 employees require workers to get vaccinated or provide negative COVID test results weekly.

Now, with the notable exception of businesses within the health care industry, the choice to mandate vaccines is up to individual employers. Companies that may have been pointing to the federal mandate in lieu of developing a policy of their own must decide whether they will continue to enforce a vaccine mandate or change course.

Whatever their ultimate decision, companies need to be fully aware of the potential risks, exposures and liabilities involved.

When weighing the options, a business should first assess its employee base. If more than 90% of workers are already vaccinated, a mandate may not be necessary. If most employees are hourly, businesses will have to carefully navigate testing requirements to ensure compliance with wage and hour laws. For example, if workers are required to submit negative COVID-19 tests before entering the workplace, are they getting paid for the time it takes to test? Is the company paying for the tests? Business leaders must calculate costs and consult legal counsel when developing procedures.

The labor market is already incredibly tight as all industries have been affected by the Great Resignation and nationwide staffing shortages, causing distinct issues with essential front-line workers in many sectors, including retail and the service industry. Businesses must consider whether they can afford to fire workers who refuse to comply with a vaccine mandate, and if they can absorb the backlash if employees quit in response to mandate decisions.

State and local vaccine mandates further complicate the situation. Regardless of a company policy, if a business operates within certain jurisdictions, it may need to require employees to vaccinate or face litigation.

While the Supreme Court blocked the federal mandate for now, they pushed the decision to the lower courts, which may change the ultimate outcome. If the decision is upheld, it will likely shield companies from some liability, but thousands of COVID- and mandate-related claims are already making their way through the courts. At a minimum, companies—and their insurers—will still be responsible for legal defense fees.

To manage risks, minimize claims and prevent large losses, business leaders should work with legal experts to make sure that they fully understand the requirements within their jurisdiction, and that the law will support their decisions. Companies proceeding with mandates will need to have well-documented proof that they provided religious and medical exemptions, and that their mandates are fully compliant with the Americans with Disabilities Act (ADA). If employees are covered by a collective bargaining agreement, businesses will likely also need to negotiate with the union before mandating vaccination.

The Equal Employment Opportunity Commission (EEOC) has updated its guidance in response to workplace vaccination questions, and business leaders and their legal counsel should refer to this guidance when developing the details of their company’s vaccine mandate. In regard to disability accommodation, the EEOC points to ADA requirements stating that employers can implement a workplace policy that includes “a requirement that an individual shall not pose a direct threat to the health or safety of individuals in the workplace.”

If a worker with a disability is unable to be vaccinated, the EEOC recommends evaluating whether the worker would truly present a “direct threat” by considering “the duration of the risk, the nature and severity of the potential harm, the likelihood that the potential harm will occur, and the imminence of the potential harm.” If needed, employers must try to make reasonable accommodation for workers with disabilities, which may include remote work or temporary paid leave.

If a business begins to fire unvaccinated employees, it must be able to demonstrate that it gave plenty of notice, offer evidence that it did everything possible to provide accommodations for religions and/or medical exemptions, and show that the firings were in no way discriminatory. If proper evidence cannot be presented, businesses may not be protected from lawsuits over employment practices or discrimination.

Businesses that choose not to require vaccinations must still have documented procedures and policies in place that illustrate commitment to the health and safety of employees. Procedures that can protect against litigation and accusations that a company is creating an unsafe work environment include: thorough and consistent sanitation of the workspace; proper ventilation; mask mandates complying with local regulations and CDC guidelines; sick leave for workers who contract COVID-19; encouraging social distancing whenever possible; and rearranging the workplace to minimize close contact between employees and, where applicable, with customers.

Health care industry organizations for which the Supreme Court ruling applies should review OSHA guidance thoroughly. The details of the mandate should be considered a baseline. To increase protection from litigation, health care organizations must go above and beyond to ensure the safety of employees and the patients they care for.

If on the fence about whether or not to mandate vaccines, businesses should keep an eye on how large companies that took firm public stances on either side of the issue fare in the courts. Those that performed due diligence and were thoughtful about their mandate decisions are likely to see minimal losses.

Alex Maza is national account director in the management liability practice at Risk Strategies.