Employment & Labor Insider

As most of our readers know, the Equal Employment Opportunity Commission said in December that employers can legally require employees to get COVID vaccinations, provided that they take a few precautions:

• First, employers are encouraged to have the vaccinations performed by a third party rather than doing it in-house. Those administering the vaccine have to ask about medical history, including drug allergies. By delegating vaccination to a third party (like the employee's health care provider, the county health department, or the drug store), the employer won't be the one making medical inquiries and won't acquire "TMI" about employees' medical conditions. Employees should be instructed to turn in a "receipt" that does not include any personal medical information.
• Second, employers are required to engage in the interactive process and make reasonable accommodations for employees who cannot or should not get the vaccine because of a medical condition (including pregnancy), or who have a sincerely held religious objection to getting the vaccine.

With those modest conditions, it's pretty much up to the employer. And my best guess is that, although the EEOC guidance came out during the Trump Administration, the Biden Administration will either leave the guidance intact or make only minor tweaks. After all, President Biden seems to be pretty pro-vaccination. Needle alert:

But just because an employer can legally require its employees to get the COVID vaccine, does that mean it should? Here are a few arguments against it. I'm not recommending against mandated vaccinations, but employers should take these "negatives" into account before making a final decision:

No. 1: The COVID vaccines are new, and they were fast-tracked. That doesn't mean they aren't good, but it does mean that we haven't had much of a chance to see how effective they really are or what their long-term side effects (if any) will be. Given those unknowns, maybe employers might not want to require employees to be vaccinated . . . at least, not yet.

No. 2: If an employer requires employees to be vaccinated and something very bad happens to the employee, is the employer going to be liable because it mandated the vaccine? We don't know for sure, but it sure is possible. Would the vaccination-related catastrophe be covered by workers' compensation? lf not, would there be tort liability?

No. 3: How much of an incentive can an employer provide to employees to get vaccinated without having its "encouragement" become, in effect, a mandate? Many employers who don't want to require vaccinations have been thinking about offering various incentives to "encourage" employees to get vaccinated. My initial reaction to this (back in November) was, "Great idea!"

My reaction to this today is more subdued. If the employer offers a nominal incentive, like a $25 gift card, then that is probably fine. But the sweeter the incentive, the more likely it is to be considered, in effect, a mandate. And then there are employers who want to penalize employees who refuse to be vaccinated. Again, if it's a minor "penalty" (missing out on the office "I Got Vaxxed" pizza party), then it is probably all right.

But if the penalties are more draconian, then the employer may be found to have "mandated" the vaccinations de facto.

A number of employer and industry groups have asked the EEOC to issue specific guidance on employer vaccination incentives. I hope the EEOC will take them up on that, and soon.

No. 4: A potential employee relations nightmare? Many employers probably have some good employees who are afraid to get the vaccine. Others may be open to it but want to wait for more people to be guinea pigs. 

Still others may be outright anti-vaxxers. None of these are legally protected reasons to refuse the vaccine. But even so, does the employer want to risk having a ticked-off workforce? Or having to fire otherwise-good employees? Maybe yes, but maybe no.

No. 5: Zan's the man. Way back in mid-December, my law partner Zan Blue said "not so fast" to mandatory COVID vaccinations. He made a good point that just because the EEOC and other government agencies say it's all right (Zan wrote the day before the EEOC issued its guidance saying that employers could require COVID vaccines), that doesn't mean plaintiffs' lawyers or the courts will agree, or that the current guidance won't change in the future. After all, when has anything related to COVID been predictable?

Whether an employer decides to mandate COVID vaccinations (once the vaccinations are widely available, of course) will depend in large part on a number of factors:

• The type of industry it is in (e.g., health care versus a law office)
• Whether the work requires employees to be physically close to each other
• Whether the work involves in-person contact with patients, the elderly, or the public
• Whether the work can be performed remotely, or at least in a cubicle or office that can be closed off
• What relevant state law says 

And, no doubt, a whole lot more. Thinking through all of the ramifications will allow employers to assess their risks and make the best decision under the circumstances.