COVID vaccine

The prevailing wisdom says you can mandate COVID-19 vaccinations for your employees.

The better question is: should you?

What allows you to make the COVID-19 vaccination mandatory?

A mandatory vaccination requirement in your workplace implicates several federal employment laws, including the Americans with Disabilities Act (ADA), the Genetic Information Nondiscrimination Act (GINA), and the religious protections of Title VII of the Civil Rights Act of 1964 (Title VII). Employers with 15 or more employees are generally subject to these laws.

To be fully transparent, there is not a definite answer to the mandatory vaccination question until and unless it is litigated because this is a novel issue. For example, some lawyers are concerned that the vaccine has not actually been fully approved and licensed by the FDA but is instead being administered under an Emergency Use Authorization only. There is, however, guidance from the Equal Employment Opportunity Commission (EEOC), which enforces the above laws, indicating mandatory vaccination policies are lawful if drafted and executed properly.

When might you have to honor an employee’s refusal to accept the mandatory vaccine?

• If a disabled employee has a medical objection and may be owed a reasonable accommodation. Here the company has to perform a direct threat analysis and engage in an interactive analysis with the objecting employee regarding a reasonable accommodation.

• If an employee with a sincerely-held religious belief objects based on his religious belief. The company will have to determine whether the employee’s objection creates an undue hardship and whether the company can accommodate the vaccination refusal.

• For example, some religious leaders have denounced the use of the Johnson & Johnson vaccine because the vaccine was produced using fetal cell lines (made in a laboratory) descended from cells taken from an aborted fetus in the 1980s. (That process is explained here: https://www.nebraskamed.com/COVID/you-asked-we-answered-do-the-covid-19-vaccines-contain-aborted-fetal-cells)

Now that you know you can (probably), should you?

According to research by the Society for Human Resource Management (SHRM), 60% of U.S. workers said they will probably or definitely get the vaccine once it becomes available to them. On the other hand, 28% of workers are willing to lose their jobs if their employer mandates the COVID-19 vaccine. Thus, you need to examine whether your company is prepared for the possibility of losing 28% of your workforce over the vaccine. If you do not terminate the employment of the objecting employees (who have no valid exemption as discussed above), you will now have a different set of legal and practical problems to solve.

Mandating the vaccine in your workplace will surely alienate a significant portion of your employees, especially if any have secular objections to the vaccine (as opposed to religious objections) and/or have adverse reactions to the vaccination. If an employee has an adverse reaction to the vaccination, you will need to report that to your Workers’ Compensation carrier.

Moreover, the recent blood clot issue with the Johnson & Johnson vaccine is a good example of how employers do not know what they are taking on when mandating a vaccine.

Can you be held liable for NOT mandating the vaccine in your workplace?

Are you feeling stuck between a rock and a hard place yet? While employers have an obligation to provide a workplace reasonably free of health and safety hazards (check out OSHA requirements), what this means for a specific employer or industry will need to be addressed on a case-by-case basis.

If you would like help wading through these competing interests as it relates to your company, please call us to schedule a consultation.

Pending South Carolina Legislation

Three House bills and one Senate bill are pending in South Carolina, all of which would prohibit employers from mandating a vaccine. See House Bills 3217, 3511, and 3711 and Senate Bill 177.

Senate Bill 177, and similar House Bill 3711, would prevent any person from being compelled to receive a COVID-19 vaccination and prohibit employers from taking adverse actions—including (i) termination, (ii) suspension, (iii) involuntary reassignment or (iv) demotion—against employees who choose not to be vaccinated. Senate Bill 177 states that individuals treating or caring for vulnerable populations (persons over the age of sixty (60) or with underlying medical conditions) can be required to receive a vaccination. The Bill has no prohibition against an employer encouraging, promoting or administering vaccinations or offering incentives to employees who choose to be vaccinated. Senate Bill 177 was passed by the Senate and sent to the House where it is in committee. https://www.scstatehouse.gov/sess124_2021-2022/bills/177.htm The 2021 session adjourns on May 13.