Last Updated on March 9, 2021

Episode 8 of the MyHRBuzz podcast goes into detail on many questions that employers have regarding the COVID-19 vaccine. We highly recommend listening to the conversation between our co-founder, Chris Cooley, and Bill Gault an attorney with Nippes, Healy and Gault LLC for more but we have provided an overview below:

What is an employer’s responsibility as it relates to the COVID-19 vaccine and what are their risks?

According to EEOC guidance from Dec 12, 2020, employers can mandate
employees to receive the COVID-19 vaccine with two caveats:

• Employees can invoke the protection of the Americans with Disabilities Act claiming that they suffer from a disability that precludes vaccination
• Employees can claim that their religious beliefs under Title VII prevent them from receiving the vaccine.

What are the risks of an employer if they don’t require the vaccination?

Examples of these risks include:

• Are you creating an unsafe work environment?
• OSHA considerations with regards to occupational diseases and hazards in the workplace
• Potential workers compensation liability because the employee claims they contracted COVID-19 from a co-worker which leads to a worker’s compensation claim

Recommendation:

Employers are going to have to do an analysis or “assessment” of each individual situation to determine:

• Does that refusal to get vaccinated pose a direct threat to workplace?
• Is there a reasonable accommoda8on that can be made to address the direct threat?
• If there are no accommoda8ons, can the employee be “excluded” from the workplace?

Things to keep in mind: When you are faced with a potential ADA or Title VII accommodations and have done a direct threat analysis, the risk is still greater for those employers who have a mandatory policy.

What is a suggested approach for employers about the vaccination? 

Employers could STRONGLY communicate that they encourage employees to get the vaccination. This communication will provide an advantage, to employers if they are sued for failing to have a mandatory
vaccination policy.

What risks does an employer have in bringing a third party to provide the vaccination onsite?

The more involved the employer becomes in contracting with 3rd parties to administer vaccine, the more the exposure they have to liability.

This liability is primarily due to the health-related pre-screening questions. If the employer or its agent is asking the questions, this needs to be analyzed as to whether those questions are “job related.” This could become a liability risk.

Recommendation:

Remove employer from any health related inquires/ pre-screening questions by strongly recommending the employees go to an outside third party to receive the vaccine.

Should policies be put in place if an employer recommends the vaccine as opposed to mandating it?

Written policy is not required, but does not hurt to have a memorandum or written notice to employees encouraging them to get vaccinated.

Can an employer require proof of vaccination?

Employers can request employees to provide proof of vaccination. If an employee will not provide proof of vaccination, an employer must perform an individual assessment under the EEOC as noted above. If that employee poses a direct threat, and reasonable accommodations have been exhausted, the employer can decide to exclude the employee from the workplace if they feel it is harmful. There is some conflict here though because the employer is not requiring vaccination.

Where can I find guidance on the assessment mentioned above?

The EEOC December 16, 2020 publication set out these 4 factors:

1. Duration of the risk
2. Nature and severity of potential harm to the workplace
3. Likelihood that potential harm will occur
4. The imminence of the potential harm

A conclusion should show that a direct threat could occur that an unvaccinated individual will expose them to a direct threat to the virus in the work environment.

Then the employer should move onto whether there is reasonable accommodation. The reasonable accommodation should rely on OSHA, CDC, or other authoritative agencies’ guidance.

Who do you recommend an employer ask for advice on this topic?

An attorney or your HR Department should provide good guidance:

For more information or to contact help directly on this topic, you may contact Bill Gault, of Nippes, Healy, and Gault, LLC at 601-952-2592 ext 110 or Chris Cooley, of MyHRConcierge at 1-855-538-6947 ext 108 or email ccooley@myhrconcierge.com.