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Covid-19 Vaccine Mandates at Work Promise Employer Headaches

Nov. 2, 2020, 4:00 PM

Employers that want their workers to take a Covid-19 vaccine once it’s available would be better off encouraging and facilitating its use, rather than requiring it as a condition of employment, according to legal and public health observers.

The Trump administration’s $18 billion “Operation Warp Speed” program aims to produce 300 million doses of a viable vaccine starting in January. But questions about how the Food and Drug Administration will review the vaccine has raised public concern about side effects and efficacy. A Gallup poll from earlier this month showed just half of Americans would be willing to take a coronavirus vaccine that the FDA signed off on.

Employers generally have the legal authority to impose vaccine mandates, meaning that most workers who face such requirements would have to decide whether keeping their job is worth taking the new drug. The widespread reluctance reflected in the Gallup poll, however, could make orders telling workers to vaccinate or face termination difficult or impossible to enforce if resistance among workers coalesces and hardens.

“From a practical standpoint, a company probably can’t discharge half of its workforce,” said James Paul, an Ogletree Deakins attorney who counsels employers.

Moreover, workers can ask to be waived from any vaccine requirements as a religious or disability accommodation. If there are other ways to protect that worker, such as telework or workplace segregation, it could be difficult for employers to force the vaccine.

Vaccine requirements in the health-care industry for influenza and other known diseases aren’t new, but a broader range of employers may want their workforces inoculated against the novel coronavirus. Businesses with large worker populations in close quarters, such as manufacturers and meatpacking operations, and those with public-facing employees, like retail stores and restaurants, are among those that could be interested in vaccines, attorneys said.

Perhaps more crucially, existing vaccine mandates are for shots with established records of safety and effectiveness. Covid-19 vaccines will initially emerge from an accelerated federal approval process.

A Covid-19 vaccine likely won’t be be available in the U.S. until January at the earliest, according to Anthony Fauci, the nation’s top infectious-disease doctor. Five companies are in the final stages of study, with Pfizer Inc. and Moderna Inc. having fully enrolled their trials, Fauci said Oct. 28.

Initial Vaccine

The FDA’s emergency approval will probably restrict the vaccine’s use to particular vulnerable populations, like health workers and older people, thus narrowing employers’ ability to mandate it, said Ross Silverman, a professor of health policy and management at Indiana University.

Other factors complicating workplace requirements on initial vaccines include the potential for side effects and varying effectiveness levels of different vaccines that are approved on an expedited basis, Silverman said.

Robert Field, a professor of law and public health at Drexel University, said employers should wait until a vaccine goes through a full-fledged FDA approval process before requiring it. A Covid-19 drug would get priority and move through much faster than the typical one- to two-year period, he said.

Although the FDA resisted White House pressure to rush out a vaccine before Election Day, there’s still public concern that the drugs under development won’t be fully vetted, Field said.

“That wouldn’t last indefinitely if there’s a vaccine with a proven track record,” Field said.

Employer mandates will start in hospitals and other health-care facilities, said Y. Tony Yang, a public health professor at George Washington University. Public acceptance of vaccines should increase after people see nurses taking them without harmful side effects, said Yang, who directs the university’s Center for Health Policy and Media Engagement.

The Service Employees International Union has already started bargaining over potential vaccine mandates with health-care employers, including Kaiser Permanente, Dignity Health, and the League of Voluntary Hospitals and Homes of New York, said SEIU President Mary Kay Henry.

“We’re very concerned about, obviously, getting health-care workers the highest level of protection,” Henry said.

Health-Related Exceptions

Most nonunion private-sector employers have a relatively free hand to impose vaccine mandates. Employment relationships are presumed to be “at-will” in all states except Montana, according to the National Conference of State Legislatures. Employers can fire at-will workers for any legal reason.

But there are exceptions to that authority when it comes to mandatory vaccines. The Equal Employment Opportunity Commission hasn’t issued specific guidance for a Covid-19 vaccine, but its guidance on flu vaccines gives a sense of employers’ obligations: If they require a vaccine, they must make accommodations for workers with disabilities or religious objections.

Companies covered by the Americans with Disabilities Act “should consider simply encouraging employees to get the influenza vaccine rather than requiring them to take it,” the agency said.

If the vaccine is made available through an expedited process, it could prompt more workers to request ADA accommodations, said Brett Coburn, attorney at the management-side firm Alston & Bird. Religious objections to a Covid-19 vaccine likely will occur at the same rate no matter how a vaccine is approved.

Regardless of whether mandates are for vaccines approved on an expedited or normal process, workers have a good chance of prevailing on ADA claims if they have health conditions that compromise their immune systems and medical advice that they avoid vaccines, said Nicole Buonocore Porter, a law professor at the University of Toledo.

Employers would face stiff odds convincing courts that an unvaccinated worker poses a direct threat in the workplace, so long as there are accommodations available like working from home or moving to an area segregated from coworkers, said Porter, who’s written extensively on disability bias law.

Health-care companies and other employers with obvious job-related necessities for ensuring that their workforces are protected against the virus likely will have an easier time defending mandates in court, said Paul Rouhana, a plaintiffs’ attorney with Seigel & Rouhana. But businesses lacking that clear need, such as a law firm, “will have a tough time” convincing a judge, he said.

Getting Sick From Vaccines

Companies that require workers to take Covid-19 vaccines straight from the FDA’s emergency approval process may need to deal with lawsuits related to adverse side-effects, lawyers said. Depending on the state, workers who get sick from taking a required vaccine would have to prove their employer was reckless or grossly negligent to get around the workers’ compensation system.

Every state except Texas requires employers to pay compensation to workers hurt or sickened on the job. Those state systems give workers benefits regardless of fault, and employers receive protection from lawsuits unless they’re accused of committing serious misconduct.

As long workplace mandates are consistent with the uses authorized by the FDA, such claims of recklessness or negligence would likely fail, said Jennifer Rubin, a Mintz Levin attorney who counsels employers.

Despite the lack of black-letter law on the issue, any type of FDA approval should protect companies from worker injury lawsuits for side effects, said Joseph Sullivan, an attorney with employer-side firm Taylor English.

“Private employers shouldn’t be punished for forcing workers to get what the government said was safe,” he said.

Union Workforces

Collective bargaining agreements outside of the health-care industry usually don’t cover vaccines, though they often create safety committees composed of union and non-union representatives, said Sara Kalis, a Paul Hastings attorney who represents employers.

Employers should negotiate with unions or engage with safety committees before imposing vaccine mandates, regardless of whether they have a legal duty to bargain over them, Kalis said.

Management rights provisions generally address how much leeway the employer may have to act in areas that aren’t specifically covered in labor deals, said Ashley Cano, a management lawyer with Seyfarth Shaw.

A National Labor Relations Board decision from 2012 said a hospital didn’t need to bargain over a proposal to mandate masks for nurses who didn’t get flu shots, Cano noted. The NLRB held that a management rights clause allowed the hospital to impose the policy.

— With assistance from Ian Kullgren

To contact the reporters on this story: Robert Iafolla in Washington at riafolla@bloomberglaw.com; Louis C. LaBrecque in Washington at llabrecque@bloomberglaw.com

To contact the editors responsible for this story: Martha Mueller Neff at mmuellerneff@bloomberglaw.com; Fawn Johnson at fjohnson@bloombergindustry.com; Gregory Henderson at ghenderson@bloombergindustry.com

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