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December 22, 2020

How to craft a COVID-19 employee vaccine policy

Courtesy / Brann & Isaacson Peter Lowe and Hannah Wurgaft are employment and labor attorneys with Brann & Isaacson, a Lewiston-based law firm.

Although COVID-19 cases are spiking in Maine and across the county, we are starting to see a ray of light at the end of the tunnel — a vaccine. Maine is expected to receive nearly 75,000 COVID-19 vaccine doses before the end of the year. With widespread availability of vaccines in 2021, many are wondering whether employers will require their employees to be vaccinated. Employers who plan on offering or mandating the vaccine should plan ahead and begin considering their policy.

State and federal guidance

In creating a COVID vaccine policy, employers should review state and federal guidance. Federal agencies generally permit employers to require employees to be vaccinated. In newly issued guidance, the Equal Employment Opportunity Commission did not come right out and say that the COVID vaccine could be mandated for employees. But it stated that the vaccine would not be considered a medical examination under the Americans With Disabilities Act and that employers could ask employees whether they have been vaccinated. The guidance also stated that unvaccinated employees with disabilities could be kept out of the workplace if their presence would pose a direct threat to safety. 

The Food and Drug Administration’s emergency authorization of the Pfizer vaccine raises another question — whether an employee may refuse the vaccine until final FDA approval is given, which may not be until the spring. We expect more guidance on mandatory vaccines from Occupational Safety and Health Administration. In the interim, non-union employers can adopt vaccine policies, while an employer will need to work through the union first for employees subject to a collective bargaining agreement.

Exemptions and reasonable accommodations

Workplace policies should allow for exemptions to a vaccine as a form of reasonable accommodation for medical reasons or religious beliefs. Religious exemptions must be based on a sincerely held religious belief. Note that the definition of a religious belief is quite broad. However, a philosophical opposition to vaccines does not qualify an employee for an exemption. 

Employers are also not required to provide accommodations that present an undue hardship to the organization or that would result in a direct threat to the safety of others. Therefore, employers may not need to allow an unvaccinated employee to work onsite but should explore alternatives. When drafting a policy, employers may want to describe the types of accommodations which may be considered. Remember that each employee’s needs should be addressed on an individualized basis.

Benefits and risks of mandating vaccines

The COVID vaccine promises to protect the health and safety of employees and curb transmission of the virus. Mandating vaccines would likely result in healthier workplaces, decrease the odds of an outbreak, and inspire greater confidence in the public. Mandatory vaccines may also help employers minimize liability in a civil suit and protect against regulatory risks. 
That said, if we have learned anything from face covering mandates, vaccine mandates are sure to ignite fierce debate. Before implementing a policy, you will want to consider the impact mandatory vaccines will have on workplace morale. Employers should also consider their responsibility and liability if an employee becomes ill from the vaccine. Also, you need to be prepared to face the tough question regarding what you do if an employee refuses to be vaccinated. Is it a condition of employment and will the employee be terminated? Will the employee be eligible for leave? 
Ultimately, an employer’s decision to mandate vaccines should be driven by the nature of their operations and the weighing of some competing risks. We expect that health care providers will not only be the first to receive the vaccines, but also the first to require them. Many other Maine employers may lean towards encouraging vaccinations and providing employees with the support and resources to get vaccinated.

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