A vaccine will, hypothetically at least, bring about a return of activities once considered normal — going to large holiday gatherings, having drinks at a crowded bar, working in bustling office spaces.
But, as attorneys for employers and employees alike say they now expect, any new vaccine will also involve its own set of practical problems, especially in workplaces.
Public opinion is sharply divided over the benefits of vaccination for COVID-19. In September, a survey from the Pew Research Center revealed split opinions. According to the results, about 51% of U.S. adults would definitely or probably get the vaccine, whereas 49% would definitely or probably not get it.
For many employers, that means half of their workforce may end up disagreeing with a company-wide vaccination requirement or recommendation. And for employees, that means they may find themselves forced to deal with a policy or a workplace they aren’t especially comfortable with.
Erik Eisenmann, partner at Husch Blackwell and chair of the firm’s Labor & Employment practice group, is helping employers devise policies governing COVID-19 vaccination. He said many of his clients are asking not only about their own rights but also those of their employees.
“From the employer’s perspective, can I require my workforce to get a vaccine when it becomes available? And from the employee’s perspective, if my employer requires that, what sort of recourse do I have? Or do I have the ability to object?” Eisenmann said. “Those are the threshold questions we’re looking at right now.”
In the absence of official rules about COVID-19 vaccines, lawyers are looking to mandatory vaccine guidance that the U.S. Equal Opportunity Commission issued in 2019 in response to the H1N1 pandemic.
“In March of this year, that guidance was updated,” Eisnemann said, “so there’s an indication that the EEOC’s position is effectively going to be the same as it was when it was articulated back in 2009.”
According to that guidance, employers are generally within their rights to require vaccination as long as they stay compliant with Title VII of the Civil Rights Act – which could provide an exception for religious reasons – and as long as they provide the sorts of accommodation required by the Americans with Disabilities Act.
Eisenmann thinks businesses of all stripes will eventually have COVID-19 vaccine recommendations or requirements in place. A development of that sort will mark a change from the past, when mandatory vaccines – such as those used to combat the flu – were common only in health care.
Now hotels, bars, restaurants and essentially any other sort of business that provides direct customer service will be likely to have vaccine requirements.
“Those are industries where I think it’s more likely that the employer may be aggressive in that because they’ll want to be able to ensure a safe workforce and advertise to their customers that they’ve got a fully vaccinated staff to ensure safety,” Eisenmann said.
Most companies are still trying to figure out what their COVID-19 policies will look like. With questions still abounding about the safety of the vaccines, employers will be wary of requiring immediate vaccination. Some business may instead try to encourage voluntary compliance by offering free or reduced-cost vaccines onsite.
“The recommendation approach is going to lower your risk that you’ll catch one of these claims from someone who argues that you’re discriminating against them or that they have a condition that should allow them not to do that,” Eisenmann said.
Eisenmann said employers would be wise to consider what the legal consequences might be should an employee contract a deadly case of COVID-19 at their place of business. At the same time, Eisenmann said, employers should recognize proving a charge of negligence or failed duty of care won’t be easy.
“As you sort of balance that risk, I think the risk to an employer is fairly low if you choose to take a slightly more measured approach,” Eisenmann said.
Working with employees, unions
Richard Saks, labor and employment attorney at Hawks Quindel in Milwaukee, said his clients — mainly labor unions and individual employees — have yet to ask much about COVID-19 vaccine policies.
“We’ve had a lot of questions about prophylactic measures in the workplace that impact workers,” Saks said. “Most employees are concerned about their safety and want their employer to take protective measures.”
Saks, like Eisenmann, said an employer would be within its rights to require a COVID-19 vaccine. Many health-care institutions now do the same with yearly flu vaccines.
Before taking such a step, companies should take into account individual and union positions on vaccination.
“In the unionized setting, getting a vaccine would be a mandatory subject, so an employer would have to bargain over a requirement that employees get vaccinated,” Saks said. “I think most unions would agree to it, but it is a mandatory subject to bargain.”
Saks said his clients have had mixed success working with their employers to carry out COVID-19 safety precautions. For starters, he’s encouraging unions to insist upon safe COVID-19 protocols in the workplace.
“It’s a mandatory subject of bargaining under private-sector labor law,” Saks said. “In the public sector in Wisconsin, public employees really don’t have the right to bargain over anything except total base wages, but they do have the right to meet and confer with an employer to discuss COVID-19 protocols.”
Future legal battles
Eisenmann is more optimistic that companies and employees will eventually be able to reach agreement on their COVID-19 policies. Generally speaking, he said, employers will be able to find ways to accommodate employees who object to company COVID-19 vaccine policies. That doesn’t mean, though, that he doesn’t expect to see litigation that will eventually result in case law.
“Part of it’s because there’s this underlying concern in society about the vaccine and the safety and how quickly it was developed,” Eisenmann said.
He predicts that courts, in response to the severity of the pandemic, will grant greater latitude to employers who mandate COVID-19 vaccinations. Such decisions, however, aren’t likely to come down until the middle or end of 2021, Eisenmann said.
Saks and his clients are still awaiting clarity from courts on workplace matters related to COVID-19. He said companies’ varying opinions on the seriousness of the pandemic have made it difficult for some employees and unions, such as those in the meatpacking industry, to provide safe working conditions.
“I don’t think there’s any one consistent practice,” Saks said. “There aren’t a lot of cases that have made their way through court, so there’s not a lot of guidance at this point in terms of prior legal precedent.”
Both Saks and Eisenmann are eager about getting the vaccine themselves and hopeful that the most Americans will share their enthusiasm.
“Hell yeah, I’m going to get it,” Saks said. “Hopefully it works and ends this craziness.”
“I’m excited to get the vaccine as soon as it has been approved by the FDA and it’s available,” Eisenmann said. “I think this is sort of the light at the end of the tunnel that lots of us are looking for.”