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Covid-19 Employer Vaccination Programs Could Be Sought by OSHA

Sept. 18, 2020, 9:30 AM

When a Covid-19 vaccine becomes widely available, OSHA could turn to part of a 50-year-old federal law to encourage employers to offer inoculations to workers, attorneys say.

The Occupational Safety and Health Administration couldn’t mandate employers provide vaccinations or require workers to accept them, said Charlotte, N.C.-based attorney Travis Vance, a member of Fisher Phillips L.L.P.’s Covid-19 team.

But OSHA could, in theory, use the general duty clause of the Occupational Safety and Health Act of 1970 to cite any employer who didn’t offer Covid-19 vaccines, said Vance.

And because OSHA doesn’t have a rule for airborne diseases like Covid-19, agency officials have said they expect to rely on the general duty clause—that an employer provide a workplace “free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees"—to cite those not protecting workers from on-the-job coronavirus infections.

The discussions come as the Department of Health and Human Services this week released its strategy for distribution of a vaccine once it’s approved by the Food and Drug Administration and the Centers for Disease Control and Prevention.

‘Bridge Too Far’

OSHA enforcement records for general duty clause cases show the agency hasn’t used the law to issue a citation for not providing vaccinations for any illness.

The agency does require employers to offer vaccinations to prevent on-the-job infections from the bloodborne disease hepatitis B. A rule mandates that employers provide free vaccinations to workers likely to come in contact with blood (29 C.F.R. 1910.1030). Employees who turn down the treatment must sign a form acknowledging the rejection.

But the bloodborne pathogen standard protects employees from a workplace condition, not from a disease perhaps carried by co-workers, explained Baruch Fellner, a partner with Gibson, Dunn & Crutcher L.L.P., in Washington.

“I think the whole area of vaccination raises the issue of personal health as opposed to occupational health and OSHA would be well advised to avoid this bridge too far,” Fellner said.

When OSHA issues a general duty clause citation, the agency also recommends feasible ways—like a vaccine—to mitigate the danger. But OSHA could face challenges defending in court a citation for an employer not providing vaccinations, Vance said.

“Simply because employees are not vaccinated doesn’t mean that there is a known occupational hazard, especially if the employer is taking other steps under CDC and OSHA guidance to limit Covid-19 related exposure,” Vance said.

OSHA Silent on Issue

OSHA hasn’t said what its employer policies would be for Covid-19 vaccination and declined to discuss the issue.

In a May 19 staff memorandum, OSHA said that once a vaccine is available it would encourage its inspectors to be vaccinated. No mention was made of requiring a vaccination. The memo added that the agency also considers flu vaccinations for inspectors to be optional.

In a 2014 guide, Protecting Workers during a Pandemic, OSHA said “employers may offer appropriate vaccines to workers to reduce the number of those at risk for infection in their workplace.”

Democratic lawmakers and the AFL-CIO have unsuccessfully pressed OSHA to enact an emergency Covid-19 rule that would be based on CDC guidance and an airborne disease rule OSHA began work on in 2010 but hasn’t enacted. The proposed 2010 rule (RIN:1218-AD46) called for voluntary vaccination programs for infectious diseases.

State occupational safety agencies haven’t yet addressed vaccination programs.

Role of Employers

While OSHA can’t mandate Covid-19 vaccinations, an employer could require employers to be vaccinated, an effort that would be similar to some company programs for flu shots, said employment attorney Michael Eckard, a managing shareholder with Ogletree Deakins P.C. in Charleston, S.C.

“On the surface nothing would prevent an employer requiring Covid-19 vaccinations once they are available, but there are a few restrictions that would have to be accounted for under federal employment discrimination laws,” said Eckard.

The Equal Employment Opportunity Commission sets policy and enforces many of the federal anti-discrimination laws, such as the Americans with Disabilities Act.

Employers would need to allow exceptions and accommodations for disability and religious concerns, Eckard said. For example, if a worker objected on religious grounds because a pig byproduct was used in production, a different vaccine could be offered.

‘Safe and Vetted Vaccine’

Workers’ threatened with retaliation for refusing a mandatory vaccination may also be protected by OSHA’s whistleblower law, Sec. 11(c) of the Occupational Safety and Health Act, according to a 2009 OSHA interpretation letter.

An employee with a medical condition who refuses a vaccination because of the “reasonable belief” that the shot could lead to a serious illness or death may be protected from retaliation by OSHA whistleblower laws, the letter said.

Employers could also face workers reluctant to take a new vaccine.

The administration has offered different timelines for when a tested vaccine will be widely available. President Donald Trump said a vaccine could be distributed in October, while Department of Health and Human Services leaders predicted widespread availability in early or mid-2021.

Attorney Jim Brudney, the Joseph Crowley Chair in Labor and Employment Law at Fordham University in New York City, said employers who start programs soon after a vaccine release may find resistance among their workers who want to first see the vaccine’s safety established.

“This is why you need a safe and vetted vaccine,” Brudney said.

AFL-CIO Cites ‘Personal Choice’

But fear of the vaccine may be not enough to override an employer’s requirement for a vaccination.

“Court decisions have been divided in the past on whether anxiety or fear of the vaccine is sufficient under the ADA to require a reasonable accommodation,” Eckard said.

Unions would also have a say in workplace Covid-19 vaccination programs. Eckard said employers with organized workforces would need to bargain with the labor groups before vaccinations started.

Some union members are concerned they’ll be expected to accept a vaccine rushed through testing and into production, said Michelle Mahon, assistant director of nursing practice for the union National Nurses United in California.

“We need to see integrity, transparency in the evaluation process such that people like ourselves, nurses, and public health experts can take that information and evaluate it,” Mahon said.

The AFL-CIO has called for voluntary Covid-19 vaccination programs. In a March 6 letter to Labor Secretary Eugene Scalia, the union said “vaccination is a personal choice and should be voluntary in nature. No worker should suffer any form of discipline or discrimination for refusing to be vaccinated.”

State Rules

Brudney cautioned that unions that didn’t include health issues such as vaccinations in their contracts may find the employer invoking a “zipper clause,” which states that if an issue isn’t covered in the contract, then the employer can take action without negotiating the point.

In the past decade when health-care unions challenged employers’ flu vaccination mandates in federal court on the grounds the efforts should have been bargained, the cases were settled without judges ruling on the merits of vaccination programs.

While the federal government hasn’t mandated widespread worker inoculations, some state governments have enacted laws and regulations covering flu vaccinations for health-care workers.

For flu vaccinations, about 15 states either require hospitals to offer flu shots to employees or for workers to be vaccinated, according to the national Centers for Disease Control and Prevention. The mandatory and nationwide voluntary efforts produced a flu vaccination rate of about 95% among hospital workers.

And some local and state governments during the 2019 measles outbreaks used public health laws to prohibit workers who couldn’t prove immunity from measles from working in schools and medical facilities.

‘Mitigate the Spread’

Vance and Eckard said they hope OSHA and the EEOC offer guidance on employers’ duties once a vaccine is available. Commission spokeswoman Kimberly Smith-Brown said a policy has not been set. “The EEOC is aware of this issue and we are conducting our due diligence,” she said.

Eckard said he often advises clients to go with voluntary flu vaccination programs because allowing workers a choice avoids many legal issues, and there isn’t a significant difference in vaccination rates between mandatory and voluntary programs.

He said the same would be true for workplace Covid-19 vaccinations.

“The goal is to mitigate the spread of the virus and to facilitate employees getting back to work and to continuing to work safely,” Eckard said.

To contact the reporter on this story: Bruce Rolfsen in Washington at BRolfsen@bloomberglaw.com

To contact the editors responsible for this story: Karl Hardy at khardy@bloomberglaw.com; Gregory Henderson at ghenderson@bloombergindustry.com

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