Can Employers Mandate the COVID-19 Vaccine?

Challenger COVID Coverage

CAN EMPLOYERS MANDATE THE COVID-19 VACCINE?

PUBLISHED January 22, 2021

Another 900,000 Americans filed initial unemployment claims last week in the month after the economy lost 140,000 jobs, according to data from the Bureau of Labor Statistics. Many experts agree the vaccine could spur recovery, bringing people back to work safely and consumers back to businesses. That said, can your company mandate it?

Challenger Analysis

“Since mandates for vaccines are typically controversial, coupled with the newness of the COVID vaccine, many employers will likely, at least initially, strongly encourage workers to receive the vaccine versus mandate it, especially with the concurrent studies on long-term side effects,” said Andrew Challenger, Senior Vice President of global outplacement and executive and business coaching firm Challenger, Gray & Christmas, Inc.

What the Equal Employment Opportunity Commission has said

Precedent exists for mandating vaccines in the workplace, but it is often industry- and workplace-specific. The flu vaccine, for instance, is often mandated in hospitals and other healthcare–related settings like nursing homes. However, the Equal Employment Opportunity Commission (EEOC) exempts workers with certain disabilities, strongly held religious views, and pregnant women from this mandate, and companies have settled these complaints, at least in regard to the flu shot.

In 2018, the EEOC filed a complaint against a North Carolina hospital on the grounds it did not make a reasonable accommodation for employees’ sincerely held religious beliefs. The hospital agreed to pay $89,000 to claimants to settle the matter. Likewise, in 2019, a hospital in Tennessee paid nearly $75,000 to an employee who refused the flu shot on religious grounds after an EEOC complaint.

That said, a 2018 decision by the U.S. Court of Appeals for the Eighth Circuit in the Hustvet v. Allina Health System case involving a health worker with an alleged chemical sensitivity to the MMR vaccine, was found in favor of the employer. This was not an EEOC complaint, rather the plaintiff claimed protection under the Americans with Disabilities Act and Minnesota Human Rights Act. However, the three-judge panel found the vaccine and medical examination facilitating it was “job-related and consistent with business necessity,” a requirement under the law.

What the EEOC says about Coronavirus

“The EEOC has issued guidance on the COVID-19 vaccine that seems to allow for employers to mandate it, as long as they do not collect too much medical information from employees. Many employers could use a third party to administer the vaccine so that they are only collecting confirmation on whether the vaccination occurred,” said Challenger.

IMPLICATIONS ON EXECUTIVE LEADERSHIP

“What will likely factor into these decisions is employer liability if an outbreak occurs. Many companies are making use of COVID liability waivers for certain activities and jobs, but their enforceability is currently being debated and contested,” he added.

Companies will need to review local and federal legislation and any litigation that challenges both mandating the vaccine and liability waivers in the coming months.

“Almost certainly, some workers will refuse the vaccine. Companies may have some recourse outside of terminating the employee. For instance, if the worker can work from home, ongoing remote working accommodations could be made. Other mitigation efforts, such as mask- or faceshield-wearing, may be required of workers who refuse the vaccine,” said Challenger.

“Ultimately, business conditions will not return to normal until the vaccine is administered to most of the population, some estimates say 80% to 85%. Most Americans want to get back to normal and employers can encourage their workers to receive the vaccine, perhaps through incentives,” he added.

Indeed, many major Retailers have offered incentives to workers who receive the vaccine. According to CNN Business, Aldi will offer four hours of paid time off for both doses of vaccine its workers receive. Dollar General will offer a one-time cash payment equal to four hours of work, similarly to Trader Joe’s. Instacart offered drivers a $25 cash stipend.

“Leaders will need to lead by example on the vaccine front. Encourage workers to register where they can. Lead discussions on how important this will be to return to normalcy. Continue to get updates from public health experts and relay them to your teams,” said Challenger.