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Employers Should Start Planning for COVID-19 Vaccine

After nearly ten months, and perhaps during the darkest time with cases surging across the country, businesses, schools and employers of all kinds are starting to see the light at the end of the tunnel. The United Kingdom will be the first to roll out a COVID-19 vaccine this week. Reports indicate that vaccinations are set to begin on December 8, 2020, in England, Scotland and Wales. Northern Ireland reported that it would begin shortly thereafter. The rest of the world will be watching with bated breath after an unusually fast approval process for the vaccine.

The United States will likely follow a similarly “sped-up” approval process pursuant to an Emergency Use Authorization (EUA), which companies can obtain from the U.S. Food and Drug Administration. EUA hearings for both Pfizer’s and Moderna’s proposed vaccines will begin on December 10, 2020 and December 17, 2020, respectively. With an approved vaccine on the horizon, employers should begin considering whether employee vaccinations will be mandatory.

Critical infrastructure employers (healthcare, food and agriculture production, and certain manufacturers and transportation/distribution companies) are most likely to face this question first, as the vaccine would be made available to these employees the earliest. It’s likely that schools and other heavily regulated institutions and businesses will have their own requirements promulgated by the state or federal government. However, all employers will eventually be presented with this question, and should begin contemplating their policies now.

As a starting point, employers can consider the following:

  • Whether or not in-person operations are necessary or critical in order to do business
  • If so, whether compliance with Centers for Disease Control and Prevention (CDC) guidance regarding social distancing, cleaning, and PPE are feasible long-term and whether the employer has had success with implementation (i.e., zero or low cases in the workplace)
  • The impact of a mandatory vaccination policy on workplace morale (i.e., how does the employer expect employees to react to a mandatory vaccine policy? Does employee morale play a large role or small role in the ultimate decision to implement a mandatory vaccine policy?)
  • Procedures for processing accommodation requests, whether the reason is related to a religious objection or for a qualifying disability.

Reports indicate that there is significant anxiety from the public regarding the vaccine. According to several polls taken in Europe and the U.S., there is hesitancy regarding the speed at which the vaccines are being approved. On the other hand, many are anxious for a return to normalcy and ending lockdowns and restrictions on businesses. Certainly, a successful vaccine would save many lives. Employers need to evaluate their workplace operations closely and implement a policy tailored to employee safety and production needs.

As with the universal face mask mandate, employers should also expect pushback from employees regarding a mandatory vaccination policy. The Equal Employment Opportunity Commission (EEOC) published guidance regarding mandatory vaccinations during the 2009 H1N1 swine flu epidemic. The EEOC has indicated that this same policy is applicable to the COVID-19 pandemic. The guidance indicates that employers can compel employees to get vaccinated as long as reasonable accommodations are provided in accordance with Title VII (for religious objections) and the Americans With Disabilities Act (ADA). Objections or requests for accommodation under either statutory scheme will require employers to evaluate the request in context with workplace reasonableness and whether an undue hardship is created due to a direct threat. While the analyses under Title VII and the ADA are similar, they are not identical. Employers should review the standards under both Title VII and the ADA and incorporate the reasonable accommodation evaluation processes into its human resources policies. Supervisors should also be trained on what to do if an employee objects to a mandatory vaccination policy.

Because there is so much left unknown at this point in time, it will be difficult to adopt a final policy until the vaccine is approved for distribution. The EEOC may issue additional or updated guidance as well. However, it’s important to be prepared to act quickly when additional information becomes available.

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