Employers who are considering mandatory vaccination policies should weigh the following legal and practical risks: 

• Currently-available vaccines have been authorized by the Food and Drug Administration (FDA) only under “Emergency Use Authorization.” This emergency status poses challenges to a mandatory vaccination program in the workplace.
   
• Even when the FDA approves vaccines, mandatory vaccination programs are not necessarily permissible for all employers and workforces. For example, the EEOC’s guidance under the Americans with Disabilities Act (ADA) confirms that COVID-19 qualifies as a “direct threat” to workplace safety, but it is silent on whether a mandatory vaccination program is permissible.  And the EEOC has made it clear that reasonable accommodations must be provided to employees who are unable or unwilling to be vaccinated because of (1) a medical condition or (2) sincerely held religious beliefs. 
   
• Vaccine supply is low across the country, particularly in some populated states, so it may be hard to enforce a mandatory workplace vaccination program.
   
• Public employers may face constitutional challenges from employees based on due process, free speech and religious rights, particularly because the reaction to COVID-19 has created political divides.
   
• Mandatory vaccination policies may impact workplace morale and could create employee and public relations challenges. 

Considerations for Employer-Administrated Vaccination Programs

• Vaccine Pre-Screening Questions May Be Medical Inquiries: While vaccinations themselves may not qualify as medical exams or medical inquiries, an employer’s pre-screening questions might constitute a medical inquiry under the ADA. The EEOC advises that employers who administer the vaccine may only ask these questions if they are “job-related and consistent with business necessity.” Additionally, such questionnaires should only ask questions needed to administer the vaccine, and must be kept confidential. These questions could also implicate the Genetic Information Nondiscrimination Act and state medical privacy laws and disability laws.
   
• Workers’ Compensation Risk: Employers who administer or require employees to vaccinate may be responsible for workers’ compensation claims stemming from vaccine-related injuries and illnesses.
   
• Wage and Hour Issues: Depending on the nature and logistics of a vaccination program, employers may be responsible for compensating employees for time spent obtaining mandatory vaccinations.
   
• Bargaining: Employers with unionized workforces may need to bargain with unions prior to implementing vaccination programs.

What Should Employers Do Now?

• Take Stock: Consider whether a vaccination program is appropriate for your business needs in light of the risks above. For employers who have a largely remote workforce, this need may not be as urgent. For employers with essential workers reporting to worksites, it may make business sense to adopt a vaccination program with incentives. However, keep in mind that incentives must also comply with federal and state anti-discrimination laws.
   
• Educate Employees on Vaccines: Employers should consider providing employees with ready access to state and federal government websites that discuss the benefits, risks and logistics of vaccinations.
   
• Incentivize Carefully: As discussed above, an overly generous incentive program may run afoul of state and federal discrimination laws, including wellness rules. Employers should consider tailored, business-specific incentive programs that remove hurdles to vaccination for employees who choose to get vaccinated while avoiding penalizing employees who opt out for medical or religious reasons.
   
• Monitor OSHA Guidance: Currently, OSHA has not issued guidance suggesting a vaccine is required for a safe working environment. Indeed, OSHA’s COVID-19 citations guide still focuses on the importance of PPE measures and use. However, as the vaccines become more prevalent and more data is collected, this may change. 
   
• Stay Tuned: This is a rapidly evolving area where federal and state guidance seems to change by the day. Keep up to date by subscribing to Lane Powell’s legal updates. 

While employers may be eager to have their workforce return and be vaccinated against contracting or spreading COVID-19, it is critical for employers to be prepared to roll out a vaccination program (voluntary or mandatory) and answer the many questions that will inevitably arise with employees. 

Lane Powell’s team of attorneys is here to help you develop and implement the strategy that supports your business and your employees. For more information, consult Lane Powell’s COVID-19 Resource Center or contact Katheryn Bradley, Priya Vivian or Riley Moyer.

Lane Powell attorneys Michael Kitson and Christine Thelen will be presenting on this topic at a webinar on February 18, 2021 sponsored by the Association of Washington Business. To register, please visit AWB’s website.