Tag Archives: COVID-19

OSHA Weighs In On Mandatory COVID-19 Vaccines

As you know from my prior posts, the EEOC has stated that employers can require employees to be vaccinated against COVID-19, subject to exceptions for those employees who have a disability that prevents them from being vaccinated and those employees who have a good faith religious belief which prohibits vaccinations. Recently, OSHA weighed in on the issue of mandatory vaccinations in the workplace.

OSHA also allows mandatory COVID-19 vaccinations. However, if an employer makes vaccinations mandatory and an employee has an adverse reaction, that is a recordable event under OSHA assuming the other factors are met for recording an event on the OSHA log. Those factors include any of the following: days away from work, restricted work, transfer to another job or medical treatment beyond first aid.

OSHA’s FAQs on COVID-19 are a helpful resource, and can be found at http://www.osha.gov

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OSHA’s Latest Guidelines on COVID-19

At the end of January OSHA issued another set of Guidelines for dealing with COVID-19 in the workplace. These Guidelines are not legal requirements. However, I suspect that if OSHA investigates and sees that a business is not following these Guidelines a determination that the business has violated OSHA’s General Duty clause, which states that employers have a general duty to keep the workplace “free from recognized hazards that are causing or likely to cause death or serious physical harm”, is likely.

Among other things the Guidelines state:

  1. Employees who have been vaccinated against COVID-19 must still follow the protective measures, including wearing a mask, social distancing and hand washing.
  2. In adopting a workplace safety plan employers should engage employees to ensure their thoughts and concerns are considered. It is an interactive process.
  3. Employers should consider protections for workers at a higher risk. But be careful. This does not mean you automatically send all older employees, or employees with known underlying health issues, home. Doing so could lead to claims of age and/or disability discrimination. Instead, make a decision that applies to all high risk employees, not just a certain group or groups.
  4. Follow the CDC isolation guidelines for employees who have COVID-19 or have or may have been exposed to it.

The bottom line is employers should continue to be proactive, responsive and flexible.

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Can an employer require its employees to take the COVID-19 vaccine?

In November, pharmaceutical companies Pfizer, AstraZeneca and Moderna announced that they had each developed a coronavirus vaccine.   This is, obviously, wonderful news.  Under the current vaccine distribution plan for the State of Tennessee, residents and employees of nursing homes and long-term care facilities will receive the vaccine first, followed by first responders, low exposure healthcare workers and people with two (2) or more high-risk comorbidities. 

These vaccines will likely not be available to the general public for several months.  Many people will take the vaccine voluntarily.  But as an employer, can you require your employees to be vaccinated against the coronavirus as a condition of employment? 

The answer is likely yes, with some exceptions.  The EEOC has not yet issued any guidance on this issue.  However, the EEOC has previously issued guidance on whether employers can require all employees to take the flu vaccine.  With respect to the flu vaccine, the EEOC states that an employer can require an employee to be vaccinated unless the employee should be exempted because of an ADA disability or his or her sincerely-held religious beliefs. 

If the employee has an ADA disability that prevents the employee from taking the flu vaccine, the employer must analyze whether it can reasonably accommodate this disability without undue hardship.  For example, can the employer reasonably accommodate the employee’s disability and address the health and safety concern by having the employee wear a mask or PPE at all times when the employee is around others?  If this reasonable accommodation will not create an undue hardship, then the employer must provide that reasonable accommodation.

An employee’s sincerely-held religious belief, practice or observance may also prevent that employee from taking a vaccine, whether it is the flu or the coronavirus vaccine.  For those employees, the employer must also determine whether it can provide a reasonable accommodation, such as the mask or PPE requirement, or working remotely, that will not impose an undue hardship on the employer.  The EEOC goes on to state that “generally, ADA-covered employers should consider simply encouraging employees to get the influenza vaccine rather than requiring them to take it.”

Given that COVID 19 appears to be more deadly to some and more contagious than the flu, the EEOC might change its position on the issue.  Certain industries may also have obligations to vaccinate employees, such as those employers in the healthcare industry.  For now, most employers should assume that they will not be able to require vaccinations for those employees who have an ADA disability or sincerely-held religious belief that prohibits vaccination and will have to consider whether those employees can be reasonably accommodated without undue hardship. 

Employers considering mandatory vaccination policies should review relevant EEOC, CDC and any state guidance and consult legal counsel to ensure that they meet their goal of protecting the health and safety of their workforce without violating applicable laws.   

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