Risk and Exposure – Even if an Employer Can Require the COVID Vaccine, Should They?

Updated: Sep 10

State governments began issuing vaccine mandates approximately three weeks ago,

and the mandates, or lack thereof, vary greatly from state to state. For example, Florida

has stated that if a business requires proof of vaccination records, then the business will

be fined $5000.00. Washington State has mandated that health care workers be

vaccinated by October 18, 2021, and if not fully vaccinated by then, the health provider

is not permitted to practice. Washington will fine any health provider for practicing

without being vaccinated. Employers in general want to know if they can require

employees to be vaccinated in the absence of state mandates. Following the “if” is the

“should” - should an employer require employees to be vaccinated? The choice hinges

on risk and tolerance.


The Occupational Safety and Health Administration (OSHA) allows employers to

establish health policies and standards that are job related and necessary to protect the

employee. [1] However, when implementing policies, the employer must consider an

employee’s religious beliefs, medical conditions, and/or disabilities. The employee may receive a vaccination exemption based upon religious beliefs or medical condition(s). Employers must also make reasonable accommodations for employees with disabilities.


Historically speaking, hospitals and health systems have mandated employee vaccinations as health policy for many years. In fact, several states require hospitals to mandate certain vaccines for employees. [2] For example, the State of New York mandates that hospitals and health systems implement and enforce a policy that all employees receive vaccinations for measles and rubella as a condition of employment. Similarly, many health systems nationwide require employees to be vaccinated for influenza.


Mandated vaccination is not new in hospitals and health systems, but may be uncharted

territory for small, private health facilities and non-healthcare businesses. Federal law

does allow all employers, not just healthcare employers, to mandate vaccines for

employees. The Equal Employment Opportunity Commission (EEOC), which is

responsible for enforcing federal laws regarding workplace civil rights and

discrimination, published new guidance for employers who want to implement

mandatory vaccine policies for their employees. The guidance allows vaccine

mandates, but cautions employers that they must comply with all workplace regulations,

including civil rights laws and the Americans with Disabilities Act (ADA). [3] For example, if

an employee has a disability preventing vaccination, the employer must determine if the

employee is a “direct threat” to those in the workplace. A direct threat is defined as

having a “significant risk of substantial harm.” [4] If the employee is not a direct threat, then

the employer cannot mandate vaccination. Employers must consider every employee’s

individual situation before mandating vaccination.


Federal law may allow for employee vaccine mandates, but some states do not. In May

2021, Montana passed legislation that prohibits employers from refusing employment to

a person or discriminating against a person based on the person’s vaccination status.

Therefore, it is prudent for every employer considering mandatory vaccines to consult

local (state) regulations and statutes.


Before mandating vaccines, an employer should globally consider the nature of the business, workplace environment, employees, and clientele. Is the business a healthcare facility? Do the employees interact in a small office with high-risk clients like the elderly, people with diabetes or people who are immunocompromised? If the answer is yes, then mandating the COVID-19 vaccine may be necessary. However, if the business is outside of health care or employees work remotely, and state and federal governments have not mandated vaccines in the workplace, then employers may want to consider the risk of potential liability and employee pushback versus the risk of non-vaccinated employees. After considering the risks and benefits, and choosing to to implement a vaccine mandate, employers are encouraged to create and enforce a clearly written policy. Failure to do so may result in greater exposure for the employer.


If you require assistance understanding vaccine mandates or implementing vaccine

policies in the workplace, please contact Katie Spear at (888) 609-8718. Katie enjoys

assisting providers and small business owners with legal matters related to employee

and workplace policies.


*Update to vaccine mandates as of 9/9/2021 - On September 9, 2021, the Biden Administration announced sweeping COVID-19 vaccination requirements that impact large employers and millions of employees across the nation. The federal mandate - a forthcoming Emergency Temporary Standard (ETS) from OSHA - applies to all employers with 100 employees or more. These employers must require and enforce employee COVID-19 vaccinations. If employees decline vaccination, then employees must be tested for COVID-19 on a weekly basis. The penalty for non-compliance is $14,000 per violation. The Administration stated that employers must provide paid time off to employees in order for employees to comply with the above-mentioned requirements.


In addition to the 100+ employee vaccine mandate, workers at healthcare facilities receiving federal Medicare or Medicaid dollars must also be fully vaccinated. Finally, the Biden Administration announced that it will sign an executive order requiring all executive branch employees and federal government contractors to be vaccinated or successfully test out.


Citations:

[1] https://www.osha.gov/employers

[2] https://www2a.cdc.gov/vaccines/statevaccsApp/

[3] https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws

[4] https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws

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