The arrival of the COVID-19 vaccine has sparked optimism amongst employers, but questions and the possibility of unintended consequences come along with it. This presentation discusses the ability and wisdom of mandating the vaccine for your employees, the statutory constraints on doing so, and options for your workplace.

1. A Shot in the Arm?
Issues Employers Should Consider When Making
Decisions About the COVID-19 Vaccine
Karen D. Adinolfi, Shareholder
January 28, 2021
© 2020 Roetzel & Andress LPA

2. • Vaccine has long been touted as the solution to our COVID-
19 problems.
• FDA has authorized multiple pharmaceutical companies to
distribute the vaccine under an Emergency Use
Authorization.
• Thus far, vaccines have been given in two steps, although it
appears that a one-step vaccine is nearing completion.
• States are responsible for developing their own vaccination
protocols and distribution plans.
• Rollout has been slow and disorganized. As a practical
matter, may be a while before the general population has
access to it.
2
How Did We Get Here?

3. 3
Vaccine-Related Issues for
Employers

4. 4
No Jab = No Job?
Or, Can An Employer Require its Employees
to Receive the Vaccine?

5. • In short, yes.
• Guidance received thus far from the Equal Employment
Opportunity Commission (EEOC), while not saying it outright, is
clear from context that employers may require their employees to
receive the vaccine.
• While an employer can require it, there are several significant
caveats. Employers may find getting to 100% vaccination difficult.
5
Can the Vaccine be Required?

6. Three methods by which the vaccine may be obtained:
• Employer-provided;
• Administered by a third-party; or
• Obtained by the employee and documentation provided
to employer.
6
Can the Vaccine be Required?

7. Some of the issues that may arise when requiring the vaccine:
• Americans with Disabilities Act
• Genetic Information Non-Discrimination Act
• Title VII, specifically the prohibition of religious discrimination
• National Labor Relations Act
7
Can the Vaccine be Required?

8. You may have employees who claim they have a disability that prevents
them from getting the vaccine.
‒ Treat this like any other request for accommodation.
‒ Engage in the interactive process.
‒ Request medical documentation.
‒ Without the vaccine, will the employee pose a “direct threat” to others
in the workplace?
• Specific inquiry
• High burden
• Accommodation may mitigate it.
‒ If unable to get vaccine, what accommodations can be made?
• Transfer to position with less human interaction
• Requirement to continue to wear mask and maintain social
distancing
8
Americans with Disabilities Act

9. When engaging with employees
about the vaccine, do not solicit
information that might reveal
family history of a disease or the
genetic component/cause of a
disease.
• In interactive process
• In medical documentation
9
Genetic Information
Non-Discrimination Act

10. Some employees may refuse the vaccine on religious grounds.
• Treat refusal as any request for reasonable accommodation of a sincerely
held religious belief.
• Inquiry into religious beliefs – employer may make a limited one, but cannot
require any specific type of proof – employee’s statements may be sufficient.
• Engage in the interactive process.
‒ If accommodated, will the employee pose a “direct threat” to others in the
workplace?
• Specific inquiry
• High burden
• Accommodation may mitigate it.
‒ If unable to get vaccine, what accommodations can be made?
• Transfer to position with less human interaction
• Requirement to continue to wear mask and maintain social
distancing
10
Title VII

11. • Fear
• Political beliefs
• Specific anti-vaccination
beliefs
• Personal preference
11
What is Not a Religious Objection?

12. • Unionized workplace – mandating the vaccine would be a term
and condition of employment and as such, must be bargained
about.
• Concerted protected activity under Section 7 of the NLRA
‒ Section 7 applies to both union and non-union workplaces.
‒ Simply put, it protects organized or coordinated opposition to
vaccine mandate amongst employees.
‒ Employer may not retaliate against employees for engaging in
this activity.
12
National Labor Relations Act and
State Employee Relations Acts

13. • Workers’ compensation – if
injured as a result of the
required vaccine, may be a
workers’ compensation
claim
• Waivers and releases
‒ Use sparingly – unclear
if they will be upheld
‒ Most states prohibit a
waiver of a workers’
compensation claim.
13
Other Considerations to
Requiring the Vaccine

14. • Encouraging through education
‒ General education about vaccine and its safety and effectiveness
‒ Specific education about how workplace will benefit
• Incentivizing
‒ Several corporations have announced they will provide incentives to
encourage employees to receive the vaccine.
• Dollar General (4 hours pay to receive both phases of vaccine)
• ALDI (4 hours pay to receive both phases of vaccine, with
coverage of cost of vaccine if necessary)
• Trader Joe’s (4 hours pay to receive both phases of vaccine)
• Instacart ($25 stipend)
‒ Make sure your incentive is not such that would render the
employee’s decision as “involuntary.”
14
Alternatives to Requiring the
Vaccine

15. 15
Questions?

16. 16
© 2020 Roetzel & Andress LPA
Karen D. Adinolfi
kadinolfi@ralaw.com | 330.849.6773