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12.15.20   |   COVID-19, Insights

Developing a COVID-19 Vaccination Policy That’s Right for Your Business

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This week, the very first batch of COVID-19 vaccinations will be administered to people across Ohio. While this first wave of vaccinations is only for healthcare workers and vulnerable residents, the hope is that vaccination will soon become available to the general public.

As your business looks forward to a post-COVID era, now is the time to start preparing a vaccine policy that best serves your company and its employees. Critchfield, Critchfield & Johnston is available to help you plan for an uncertain future and design a vaccination policy that fits your business.

Can My Business Require Mandatory COVID-19 Vaccination?

Most likely, yes. Once the vaccines are more widely available, Ohio businesses will probably be able to implement mandatory COVID-19 vaccination policies that require employees to be vaccinated before returning to in-person work. Historically, businesses have had little issue with requiring mandatory vaccines for the flu and other diseases. But as with everything else COVID-19 related, uncertainties remain.

One of the biggest differences is that in the past, any mandated vaccines were fully FDA licensed and approved, and what few side effects existed were well understood. While the different COVID-19 vaccinations being distributed now have been subjected to rigorous testing, they are only being made available under an “emergency use authorization” and there is the possibility, however small, that unforeseen side effects or complications may arise after the vaccines are introduced into the general public.

This is somewhat uncharted territory, and new regulations or legal decisions may require employers to remain alert and flexible until a vaccine is formally approved. While enacting a mandatory vaccination policy may be the right fit for your business, it may still be a good idea to prepare a backup plan in case of unforeseen developments.

What Exceptions Does a Mandatory Vaccination Program Need to Allow?

Employees are likely to have a variety of objections to mandatory vaccinations, for both good and bad reasons. If your business decides to implement a mandatory COVID-19 vaccination policy, it is important to understand which exceptions the law requires you to allow and which it doesn’t. The two primary types of exceptions required by the law are health concerns under the Americans with Disabilities Act (ADA) and religious exemptions under Title VII.

ADA Health Concerns

Employers must allow exemptions for employees who have ADA-covered disabilities that prevent them from taking a vaccine. Under the ADA, before a vaccination can be mandated at all, it must be either:

  • Job-related and consistent with a business necessity; or
  • Necessitated by a direct threat.

The U.S. Equal Employment Opportunity Commission (EEOC) has confirmed that that COVID-19 satisfies that “direct threat” standard under the ADA. However, current EEOC guidance still provides that the current pandemic is not sufficient to overcome ADA exemptions.

 If an employee has a qualifying disability, you must exempt that employee from any vaccination requirements unless you can prove that the exemption imposes an “undue hardship” on your business. Proving undue hardship can be difficult in ADA cases, and requires the employer to show that providing a particular exemption would create significant difficulty or expense.

The primary question is whether an employee’s specific concern is a qualifying disability under the ADA. Though courts are split on the issue, claims of anxiety related to vaccines or vague allegations of chemical sensitivities are usually insufficient, while certain allergies, autoimmune diseases, and other conditions may mean that an employee must be exempt. In the case of certain allergies, however, it may just be a case of working with an employee to identify a vaccine that does not contain certain ingredients.

Religious Objections

Title VII requires that any mandatory vaccination policy must allow an exemption for “sincerely held religious beliefs.” For the most part, personal anti-vaccination beliefs or ethical objections on their own are insufficient. However, some courts disagree on when a strongly held philosophical belief can cross over into the category of religious belief, with at least one Ohio federal district court finding that a person could potentially “subscribe to veganism with a sincerity equating that of traditional religious views.”

If an employee does have a sincerely held religious belief that is protected under Title VII, an employer can only deny the exemption upon a showing that the exemption imposes “undue hardship” on the employer. This undue hardship standard is less strict than the undue hardship standard for health concerns described above, but it still requires a showing that the exemption would impose a more than minimal expense on the employer.

Could My Business Be Liable If I Don’t Require COVID-19 Vaccinations?

It is foreseeable that if a company fails to implement a stringent COVID-19 vaccination policy, some employees may allege that the business has failed to provide a safe and healthy work environment, as required by the Occupational Safety and Health Act (OSHA). Such cases would be unprecedented and their potential outcome is uncertain, but even dealing with a semi-plausible case could potentially cost your business significant legal fees.

One of the issues currently being debated in Congress is the creation of various liability protections for businesses whose customers or employees are affected by COVID-19. At the moment, it is uncertain what those liability protections might look like or if they will even be passed. Unless such liability measures are passed, it is a good idea to take at least some steps to protect your business from liability.

In addition to implementing reasonable safety measures to keep your employees healthy, one of the best ways to protect your business is to document your safety policies. If you choose not to implement a mandatory vaccination policy, keep a record of what other steps you take to protect your workers. This includes work from home programs, mask mandates, information campaigns, and other ways in which you encourage your employees to get immunizations.

What Other Vaccination Policies Might Be Effective for my Business?

Depending on your workforce, it may not be feasible or reasonable for your business to implement a mandatory vaccination policy. However, there are other ways you can encourage your employees to get vaccinations so that they stay healthy and you avoid potential legal liabilities.

For many employees, merely encouraging them through a simple information campaign and offering them time off to get the vaccine may be enough. For others, offering certain benefits and incentives may be an easy and effective way to encourage them while improving morale – especially if such incentives can be rolled into existing wellness programs.

What if I Only Want Certain Employees to Get Vaccinated?

If you only want to require vaccinations for certain employees – such as only those who work directly with customers or only those who cannot work from home – you may first want to consult legal counsel. While it may be fine in some situations, other cases may open your business to potential discrimination lawsuits. The considerations going into this determination can differ from business to business, so it is a good idea that any policy that only requires certain of your employees to get vaccinated be carefully designed with your company’s unique needs in mind.

While the first wave of vaccines signals that we’re approaching the end of the long coronavirus tunnel, many businesses still face legal uncertainty. Whether its preparing a vaccination policy, applying for loans or financial assistance, or keeping track of various federal, state, and local mandates, Critchfield, Critchfield & Johnston is here to provide your business with guidance and quality legal services during these challenging times.

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