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Keven Moore: Can employers force workers to receive COVID-19 vaccine without assuming risks?

At unprecedented speed, the COVID-19 vaccine was developed to help us fight and stop the current pandemic that grips the world. I have friends, co-workers, family and colleagues on both sides of the spectrum if they trust it, and if they plan to receive the vaccine.

I am not here to debate that argument, but for the record, I intend to research the vaccine further, but I do plan to receive the vaccine when it finally circles to me.

As for my adult daughters, I have advised both of them to wait until more research comes out regarding how it possibly could affect fertility because I have bought a house to entertain future grandchildren one day soon hopefully, and I want to get a return on my investment.

Since the COVID-19 vaccine rollout has begun in health care and senior living facilities across the U.S., many employers in several industries are eagerly awaiting the chance to have their employees vaccinated against the coronavirus. We all know the economic impact that COVID-19 has had on our economy, production, and earnings, so I can understand their eagerness for this antidote.

So what I will try to answer in this article is if an employer can make the COVID-19 vaccines mandatory during a pandemic. And if so, what are the residual effects of such a decision?

I am not an attorney and don’t profess to be one, but I have had a cold beer with a couple and I can say that with a certain degree of certainty, that, yes, employers can generally require vaccines for their employees. However, I say that with a big flashing asterisk, because there are exceptions.

The Equal Employment Opportunity Commission (EEOC) has yet to issue guidance on a COVID-19 vaccine, so employers should look to the EEOC’s guidance on the flu vaccine until they have issued any guidance.

The EEOC has previously advised that flu vaccinations may not be mandated for all employees. Exceptions must be made for disability or religious accommodation requests. Proper notice must be provided as well. But what makes this different is that COVID-19 has been declared a pandemic, so the question is does that change things?

Although the EEOC may impose religious and medical exemptions to a COVID-19 vaccine requirement, such exemptions might “result in a significant loss of life.” Hospitals and nursing homes have a particularly strong case for requiring COVID-19 vaccination because their employees are likely to work with immunocompromised persons.

But to cut to the chase – “No,” employers may not lawfully require all employees to be vaccinated, unless laws are changed.

The EEOC instead advised as a best practice that employers should consider encourage, rather than require employees to get the flu vaccine and I suspect that they will rule the same with the vaccine.

That could be still subject to change, so stay tuned.

But if it is required, you and I just know that an army of attorneys have already massed and have pre-written a class action lawsuit to defend those that will choose not to take the vaccine, and they will be asking for compensation for their clients, to help pay for their Caribbean beach homes.

I do believe that the COVID-19 vaccine would be expected for health care workers in the same way the flu vaccine is today. Employees, who refuse to get vaccinated, will then be forced to wear the appropriate personal protective equipment to protect patients, as well as co-workers.

Other industries such as retailers, grocery, restaurants, and other services related industry could follow suit and try to make it mandatory as well.

In certain industries, such as healthcare and child care and education employees may have less of a right to accommodation, because the employer may deem that it is necessary to maintain safety for other employees as well as for their patients or clients or students.

According to an article I read in SHRM.org titled “Can Employers Make Vaccines Mandatory in a Pandemic’ a lot of factors will come into play. The employee’s specific role and job duties, and whether there could be ways to maintain workplace safety while permitting the unvaccinated person to do his or her job.

For example, an individual could be granted a temporary request to work remotely without a vaccine in lieu of coming into the office with a vaccine or be reassigned to a back-of-the-house position where there wouldn’t be close contact with others.

Keven Moore works in risk management services. He has a bachelor’s degree from the University of Kentucky, a master’s from Eastern Kentucky University and 25-plus years of experience in the safety and insurance profession. He is also an expert witness. He lives in Lexington with his family and works out of both Lexington and Northern Kentucky. Keven can be reached at kmoore@roeding.com

Employers need to recognize that if they do impose a vaccination mandate that it’s likely that they are going to have to pay for the vaccination and that it will be compensable work time. Also if medical complications arise due to a mandatory vaccination policy, it’s going to be covered under workers’ compensation in most states.

According to an article in Businessinsurance.com titled “Mandatory Vaccine Policies May Have Workers Comp Implications,” the employer mandates requiring the vaccination as a condition of continued employment it’s likely to be considered a “compensable injury” if the employee suffers a severe reaction.

Even if the employer does not mandate the vaccine but encourages it, and the worker suffers a vaccine-related injury, that could also be considered a compensable injury in certain states.

Choosing to mandate or strongly encourage employees to receive the vaccines could potentially have both favorable and unfavorable workers’ compensation implications. Employers need to come up with a plan that balances the desires and welfare of the company, but also what is in the best interest of their employees.

In some industries, the employer may determine that the vaccine will be mandatory for everybody, while others may want to have a separate policy based on their employee’s job duties.

For instance, for grocery store cashiers you may want to mandate or encourage employees to receive the vaccine, while employees that stock shelves on third shift who can socially distance you may not.

Employers who mandate or encourage vaccinations will also need to develop a process to track which employees have received the initial vaccine and the booster at the appropriate time. They will also need to keep records of those that have refused to receive the vaccine and have them sign an opt-out waiver for health or religious reasons.

Employers will also need to cover the expenses for personal protective equipment such as face masks, face shields, gowns, gloves, etc., for those that do not want to receive the shot.

From what I am reading thus far, based on the experiences of people vaccinated so far, reactions to the COVID-19 vaccine have been similar to those of other vaccines, and the majority of those (vaccine-related work comp) claims, that may arise, are going to be nominal.

But I will say that compensability laws are always subject to change especially during a pandemic, so like any good riskologist, I would advise that you run your COVID-19 vaccine policy by your company’s legal counsel before implementing it.

Be safe, my friends.

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