As AstraZeneca, Moderna and Pfizer are close to receiving FDA approval for their new COVID-19 vaccines, employers will need to decide whether they’ll direct employees to get the vaccine as a return-to-work requirement.
Employers can expect the EEOC, OSHA and other federal agencies to issue guidance for employers once a vaccine becomes FDA-approved, but there’s much to consider now: Can firms make them mandatory? Which employees qualify for an exemption? What if an employee gets sick after getting the vaccine?
Here are some guidelines from the feds, as well as legal experts, as firms navigate this new territory on the road to getting employees back to work.
EEOC guidelines
The EEOC hasn’t published specific guidance on the COVID-19 vaccine, but it has updated its Pandemic Preparedness for the Workplace guidance, issued during the H1N1 outbreak in 2009.
In the update, the EEOC said firms should consider “simply encouraging employees” to get the vaccine rather than requiring them to do so.
In addition, the EEOC has declared that COVID-19 meets the ADA’s “direct threat standard,” which permits employers to engage in broader procedures than normally allowed under the ADA. Firms can expect the EEOC to issue new guidance once a vaccine’s been approved by the FDA.
OSHA guidelines
Like the EEOC, OSHA has yet to provide COVID-19-specific guidelines. However, in a 2009 letter of interpretation on flu vaccines, the agency said employers could mandate them, with exceptions for religious or medical reasons.
Also, in a 2014 guidance called Protecting Workers during a Pandemic, OSHA said “employers may offer appropriate vaccines to workers to reduce the number of those at risk for infection in their workplace.”
Legal experts expect OSHA to use its General Duty Clause to issue citations to employers that fail to offer COVID-19 vaccines. It’s also expected the Biden administration will double the number of OSHA inspectors.
State regs, vaccine rollout
Will states require employers to vaccinate employees? It will likely vary from state to state as it has in the past with flu vaccinations. During the 2019 measles outbreak, for example, some states passed laws to prohibit workers who couldn’t prove immunity from measles from working in schools.
As far as distribution of the vaccine to states, the Centers for Disease Control and Prevention (CDC) has asked states to be prepared to expedite distribution of the vaccines.
However, many states are struggling with how to handle a Pfizer-like vaccine. For example, Washington doesn’t have a warehouse that can store the Pfizer vaccine at the -70 degree Celsius temperature, while Georgia is relying on local districts and counties to work out the details.
In the initial rollout of the vaccine, most states are prioritizing healthcare workers and other essential workers to get vaccinated first, followed by at-risk populations before it reaches the general public by spring of 2021, according to the CDC.
ADA accommodations
If employers implement a mandatory vaccine policy, they’ll need to have a plan in place to handle the inevitable ADA accommodation requests. This means engaging in the interactive process and determining reasonable accommodations, such as remote work, offering private offices or minimizing employee interactions.
Now’s the time for employers to outline a plan, giving employees a voice in the decision-making process and determining which employees should be first in line for the COVID-19 vaccine.
