MANDATING VACCINATIONS
NO JAB – NO JOB ?
Employers are exploring their
options for mandating or encouraging workers to get COVID-19 vaccinations . But if an employee refuses to be vaccinated , can they be denied employment . Or to put it succinctly , no jab – no job ?
The federal Equal Employment Opportunity Commission ( EEOC ) has made a determination that employers can require workers to get vaccinated . However , certain conditions and employee rights must be taken into consideration . First , the employer would have to meet a qualification standard . The EEOC standard is that the employer must show that an unvaccinated employee would pose a direct threat due to a “ significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation .” To determine the qualification standard , employers should conduct an individualized assessment of four factors : the duration of the risk , the nature and severity of the potential harm , the likelihood that the potential harm will occur , and the imminence of the potential harm . Basically , consider how closely together employees work and how much exposure employees have to other members of the public .
In cases where an employee cannot be vaccinated due to disability or sincerely held religious beliefs and poses a direct threat at the worksite , the employer cannot exclude the employee from the workplace or take any other action unless there is no way to provide a reasonable accommodation ( absent undue hardship ) that would reduce the direct threat . In these cases , it would then be lawful for the employer to exclude the employee from physically entering the workplace .
This does not mean the employer may automatically terminate the worker .
Employers will need to determine if any other rights apply under the EEOC laws or other federal , state , and local authorities . For example , if an employer excludes an employee based on an inability to accommodate , the employee may be entitled to accommodations such as wearing a mask , social distancing , or performing the current position remotely . These are similar steps that employers take when physically excluding employees from a worksite due to a current COVID-19 diagnosis or symptoms . In addition , the employee may be eligible to take leave under the Families First Coronavirus Response Act , under the Family and Medical Leave Act ( FMLA ), or under the employer ’ s policies .
Employers have taken several approaches towards vaccinations . Some employers require employees to get vaccinated on their own and then provide proof of vaccination . Other employers are choosing not to have a workplace vaccination program or policy at all , while other employers are providing mandated vaccinations through the company . If an employer requires employees to provide proof of vaccination from a health care provider , to avoid implicating the Americans with Disabilities Act ( ADA ), the employer should warn the employee not to provide medical information as part of the proof .
Although the EEOC allows mandating vaccinations in certain circumstances , most employers should consider encouraging rather than mandating vaccinations due to potential related risks .
Employers that mandate or encourage vaccinations will likely partner with a health care provider to administer the vaccine , but they may still be concerned about potential legal liability if an employee has an allergic reaction .
If an employer merely encourages employees to obtain a vaccine , there is
probably no claims coverage under workers ’ compensation . If a vaccination injury claim is not considered covered under workers ’ compensation , an injured employee would need to demonstrate negligence on the part of the employer . Since vaccines are FDA approved and administered by a third-party provider , it would be difficult for an injured employee to demonstrate negligence .
The EEOC also says that the recipient has the option to accept or refuse the vaccine . This directive is targeted at whether an individual can be forced by a government entity to take the vaccine and not on whether an employer can condition an individual ’ s continued employment on taking the vaccine . After all , in at-will employment settings , an employee can always pursue alternative employment . However , this may not apply in a unionized setting governed by a collective bargaining agreement . +
BY : ERIC P . WOKAS , CSP ARM RISK CONTROL CONSULTANT JGS INSURANCE
Eric Wokas has over 25 years of experience as a risk management consultant working for various major property / casualty insurance carriers including Continental , Zurich and Gerling as well as Aon an international insurance brokerage firm . At JGS Insurance Eric Wokas continues to assist clients in development and implementation of practical solutions in reducing risk .
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