On December 16, 2020, the U.S. Equal Employment Opportunity Commission (EEOC) released its guidance concerning employers requiring COVID-19 vaccinations of their workforces. The EEOC does not expressly state that mandating vaccines is permissible, but it does address many of the questions and issues that may arise should an employer mandate the COVID-19 vaccine. In short, it appears that an employer may require its employees to be vaccinated unless an employee has a qualifying exemption under the Americans with Disabilities Act (ADA), Title VII of the Civil Rights Act of 1964 (Title VII), Title II of the Genetic Information Nondiscrimination Act (GINA), or other similar workplace laws. If an employee asserts a qualifying exemption to any employer vaccination mandate, we suggest that the employer confer with legal counsel.
Moreover, the Occupational Safety and Health Administration OSHA has not yet commented on mandating vaccines in the workplace. However, OSHA has consistently supported employers' rights to mandate vaccinations, like flu shots. Similar to EEOC recommendations, OSHA provides for protections for employees who refuse vaccinations. Under the whistleblower provisions, employees who refuse the vaccine based on a reasonable belief that he or she has a medical condition which would create a risk or danger of serious illness or death should they be vaccinated may not be required to be vaccinated. These employees are also protected from retaliation.
However, while OSHA provides protections for employees, under OSH Act of 1970, OSHA requires employers to provide a place of employment "free from the recognized hazards that are causing or likely to cause death or serious physical harm to his employees." Employees, additionally, are required to comply with occupational health rules and standards. It is possible that COVID-19 could be considered "likely to cause death or serious physical harm" and the necessary protections employers must take could include mandating COVID-19 vaccines. Without direct guidance from OSHA, employers will need balance their obligations to maintain a workplace free from recognized hazards while also being mindful of OSHA whistleblower protections.
There are potential liability concerns in both contexts – that is, an employer policy mandating employee vaccination could, if the employer fails to navigate the applicable workplace laws, result in an employee legal claim against the employer that could be significant. Similarly, employers who decide not to mandate or encourage employee vaccinations run the risk of having a client, vendor, visitor or other person contract COVID on or through the employer's premises. In that case, an employer could possibly face a legal claim based in negligence (that the employer failed to take reasonable steps to safeguard against the spread of COVID). Liability could be significant in a negligence action particularly if the person suffers a severe reaction to COVID or even death.
There is no perfect way to insulate against liability in the pandemic. But taking prudent steps in the workplace to mitigate and control the spread of COVID is an important way to limit potential liability. And confirming with an insurance broker about the adequacy of the employer's insurance coverage for potential liability (for claims from employees, clients and others) is a critical step to ensuring that the employer has appropriate resources to defend, and when necessary, pay out on liability claims.