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On December 16, 2020, the Equal Employment Opportunity Commission (EEOC) updated its COVID-19 Technical Assistance Questions and Answers to address the legal implications when mandating the COVID-19 vaccination. We previously wrote about the key takeaways from that guidance here.

As COVID-19 vaccination distribution begins, employers have critical decisions to make about their vaccination policies. An employer contemplating mandating the COVID-19 vaccination should consider the implications and various strategies of implementing such a program. An employer contemplating a COVID-19 vaccination mandate should consider:

Employee Health and Welfare

             While many employees will likely welcome the opportunity to receive a COVID-19 vaccination, other employees will not. As such, employers should work to reassure, not persuade, and provide educational resources to employees on the vaccination.

Business Needs

            COVID-19 vaccinations will not eliminate the need for social distancing and other health measures, such as masks, at the workplace. Accordingly, employers should identify the ways that a vaccination mandate would alter its business operations. In other words, employers should ask: is a vaccination mandate justified?

Liability

            If considering whether to mandate vaccinations, employers should contact their workers’ compensation carriers to discuss whether any injury or illness as a result of the COVID-19 vaccination would be covered.

Additionally, it’s unclear whether employers would be considered “Covered Persons” under the Fourth Amendment to the Declaration Under the Public Readiness and Emergency Preparedness Act for Medical Countermeasures Against COVID-19 and Republican of the Declaration and, thus, be immune from any liability for injury or illness resulting from the vaccination.

Current Emergency Use Authorization (EUA) Status of the Vaccination

            Both of the current COVID-19 vaccinations, Pfizer-BioNTech and Moderna, were authorized by the Food and Drug Administration (FDA) under an Emergency Use Authorization (EUA). Pursuant to the laws allowing EUA, any person offered a vaccination authorized under an EUA must be notified that the vaccination is voluntary. It’s not explicitly addressed whether a private employer can mandate the vaccination even though it is “voluntary.”

Accommodation Requests

If an employer chooses to implement a vaccination mandate, it must be prepared to handle accommodation requests from those who cannot get the vaccine due to a disability and/or sincerely held religious belief.

In determining whether to implement a vaccination mandate, an employer should ask:

  1. Should it mandate vaccinations or not? If so, how and who will be vaccinated first?
  2. Should it monitor whether employees have been vaccinated?
  3. What are the costs associated with a vaccination program?
  4. How would a vaccination mandate affect its business operations?

As the situation surrounding COVID-19 vaccinations rapidly changes, and as rules and laws change, we continually review and adjust our clients policies, plans, and workplace procedures to reflect the most recent developments. If you are an employer, we can assist in developing your workplace and vaccination policies to ensure you have a safe and compliant workplace.

Dan Ward

Author Dan Ward

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