“Until maybe about a month ago, we hadn’t had many clients asking about it,” said Brett Coburn, a labor and employment partner with Alston & Bird. “We’re starting to see a lot more momentum.”
The news that a coronavirus vaccine could start being distributed within the next few weeks has sent stocks soaring and government officials scrambling to develop plans for the herculean task of distributing it across the country.
For employers, many of which have kept workers home for months, it has opened a complex set of legal and practical issues: Can they require employees to take a vaccine? Should they offer incentives instead to encourage compliance? And what should they do if employees resist?
“You’re going to have a lot more people who are lacking comfort about safety” of the vaccine after such a short development timeline, said Coburn. “Add on top of that the political issues that have unfortunately taken over. If someone’s not willing to wear a mask, do you think they’re going to put a shot in their body?”
It will likely be months before anyone besides health care and other essential workers have access to the vaccine. On Tuesday, an advisory panel to the Centers for Disease Control and Prevention (CDC) said health care workers and long-term care residents and staff should get top priority for the vaccine.
In the meantime, employers are waiting for specific guidance from federal agencies such as the U.S. Equal Employment Opportunity Commission (EEOC) and the CDC before setting corporate policies, employment lawyers say.
Christine Nazer, an EEOC spokesperson, said in a statement the EEOC “is actively evaluating how a potential vaccine would interact with employers’ obligations under the Americans with Disabilities Act [ADA], Title VII of the Civil Rights Act of 1964, and the other laws the Commission enforces.” An email to the CDC was not immediately returned.
“There are so many unknowns, so many unanswered questions,” said Sharon Perley Masling, a partner at Morgan Lewis, who said most of her clients are considering just encouraging the vaccine until there is government guidance. “We’re operating from a bit of a blank slate right now.”
The biggest difference between requiring employees to take a vaccine for the coronavirus compared with the flu or other vaccines — which health care organizations have long required — is that COVID-19 vaccines are expected to first be available under an “emergency use authorization” rather than a full Food and Drug Administration licensure, Masling said. “To the best of my knowledge, the issue of whether an employer can require a vaccine that is still under an emergency use authorization hasn’t arose before,” she said, adding the EEOC might be “cautious about the guidance it will issue about a vaccine that has not yet received full approval.”
Once a coronavirus vaccine receives formal government approval, employment lawyers say it’s more likely to be treated like the flu shot, which can be mandated, even if it’s currently rare outside the health care field.
But that comes with several important caveats. Employers must abide by any state or local laws, as well as provide “reasonable accommodations” to people with qualified disabilities and to those who have religious objections, as required by the ADA and Title VII, respectively. Under the ADA, a vaccination is considered a medical examination that must be “job-related and consistent with business necessity or it’s necessitated by a direct threat,” said Karla Grossenbacher, a labor and employment lawyer with Seyfarth Shaw. Collective bargaining agreements with unionized workforces should also be consulted, employment lawyers said.
Some big corporations say they are beginning to prepare, if not necessarily issuing mandates.
Ford said Nov. 24 that it ordered a dozen specialty freezers to store Pfizer’s coronavirus vaccine at ultralow temperatures, and would make the vaccine available to employees “on a voluntary basis,” said spokesperson Kelli Felker.
In an email, Tyson Foods spokesperson Derek Burleson said the meat processor, which has faced outbreaks in its plants, was working with health care firms including Matrix Medical Network to get employees access to the vaccine when it becomes available. Burleson said it was too early to say whether it will mandate the vaccine, but its decision “will be in full compliance with federal and state law and with the best interests of our team members in mind.”
Target spokesperson Jenna Reck said in an email that its coronavirus task force is closely monitoring vaccine developments and plans to offer it to employees and customers at its in-store CVS pharmacies once a vaccine is authorized and made available to the public. Reck said she did not have additional details when asked whether a vaccine would be required.
For many employers, the big question will be not just whether they can mandate the vaccine but whether employees would be willing to take it.
A recent study commissioned by the nonprofit COVID Collaborative found that fewer than half of Black people and 66% of Latino people said they would definitely or probably take the vaccine if it was offered free of charge. The survey explored the reasons behind the hesitancy, which included a distrust in government, with some pointing to historical injustices.
Employers that plan to mandate a vaccine may face dilemmas in enforcing the rule. “What if it’s not just one or two people who refuse to get it, but it’s a whole bunch? Are you going to fire a material part of your workforce?” Coburn said.
While employers may be able to draw some lines about who must get the vaccine — such as those who work directly with customers and those who don’t — implementing a mandate in piecemeal fashion could prompt some employees to sue for discrimination. “If the repercussion is not across-the-board termination, either you’re going to have a toothless mandate or you’re going to put yourself in a position where you may be picking and choosing,” he said.
Offering employees incentives to get the vaccine may be more effective, some experts say. David Barron, an employment lawyer with Cozen O’Connor, said clients are already looking into how they can use wellness programs to reward employees who take the coronavirus vaccine with gift cards or discounts on health insurance premiums, much as they would with getting a flu shot or following other healthful habits.
“Most large wellness programs have those mechanisms already in place, so you’re really just piggybacking and adding a [coronavirus] vaccine in that list,” Barron said.
Even small nudges could prompt employees to get the vaccine, said Lawrence Gostin, faculty director of the O’Neill Institute for National and Global Health Law at Georgetown Law School. A global survey he co-authored found that 61.4% of employees said they would likely get a coronavirus vaccine if their employer recommended it.
Small inducements, in some cases, may prove to be more effective than mandates, Gostin said. Research has shown that forcing employees to sign a form explaining why they don’t want to take a vaccine may significantly increase compliance, he said.
“The more you make them jump through hoops — to sign forms, to make statements — the more likely they are to just acquiesce,” he said. “The change is the default, making it harder to say no.”