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In Practice

Can Employers Require Their Employees to be Vaccinated?

As the race to find a vaccine for COVID-19 continues, many organizations are grappling with a question for when one is available: Can they require employees to be vaccinated against the flu and COVID-19?

The answer: Yes … but with caveats and cautions.

Flu Season Increases the Challenge

The annual flu season is about to start, complicated this year by COVID-19’s continuing spread, which has already placed health systems under significant stress. Businesses, too, are under enormous pressure to protect both their employees and their bottom lines, hard hit for many by the ongoing response to the pandemic. 

In the looming “twindemic,” both COVID-19 and the influenza virus will circulate this fall and winter, according to the Centers for Disease Control and Prevention (CDC). Many steps recommended by health officials to slow COVID-19 — including wearing masks in public, social distancing and practicing hand hygiene — could likewise limit the impact or spread of influenza. 

However, even a mild outbreak of the flu could precipitate a major public health challenge. Consider that in the 2019-20 flu season, about 740,000 people were hospitalized with influenza in the U.S., with up to 62,000 people dying from it, according to CDC estimates. 

Complicating matters in the coming months will be the similarities among many symptoms of COVID-19 and the flu. Sick individuals and health professionals alike will have difficulty distinguishing between the two, and the possibility exists that some people will have both illnesses at the same time. 

The CDC recommends that — with a few exceptions — all Americans from 6 months old get a flu vaccination, preferably before the end of October.

Vaccine Mandates

There are numerous efforts underway globally to produce a COVID-19 vaccine, but the timeline around discovery, testing, production and widespread distribution is not clear. At present, many employers are looking ahead to plan a response for when a vaccine is ready, while also encouraging and facilitating flu vaccinations for employees and their families.

Theoretically, employers can mandate that, as an employment condition, employees agree to be vaccinated for both the flu and COVID-19. Many health care facilities currently require that workers be vaccinated against certain illnesses; in fact, in some jurisdictions, the law requires it. Students in many states are required to receive several vaccinations before they can attend public or private K-12 schools. It would thus seem that employers, generally, could require employees to receive the COVID-19 vaccine once it is available.

However, outside of health care, this type of mandate has not been common. Further, while such a requirement may be legal, it may not be the best course of action. Employers need to balance how to create a safe, healthy and productive workplace against employees’ rights.

Ultimately, an organization will decide among three primary options: Requiring vaccination, strongly encouraging it, and simply recommending it.

COVID-19 and the arrival of flu season create many unprecedented challenges for employers, and they will need to keep employees safe, healthy and working during this time.

Accommodating Employees

Even an employer that imposes a vaccination requirement must accommodate employees with health conditions or drug interactions that make vaccines dangerous for them. At the same time, employers must be mindful of the rights of individuals who hold religious, moral or ethical beliefs against vaccines. Considerations might include such steps as re-accommodating employees who are unable to social distance to ensure they do not present a health risk to others.

For most employers, the advisable course of action may be to strongly encourage and facilitate the distribution of flu vaccinations. Under “normal” or pre-COVID-19 circumstances, many employers would be launching internal communications campaigns to urge their staff to get a flu shot in the coming weeks, with some going a step further and setting up onsite clinics to deliver vaccines in the workplace.

Facilitating such clinics may not be feasible during a pandemic. Employers, however, can ensure that employer-sponsored health insurance plans provide coverage or directly pay for such vaccines, which are readily available via doctors’ offices, pharmacies and other sources.

No matter how an individual employer approaches this issue, it is important for them to have a plan in place to address employee objections, provide appropriate work accommodations and address other issues. Employers should also ensure that decisions on vaccination programs are made with the input of a working group or planning team of key internal stakeholders, including risk management, human resources, legal, communications, and environmental, health, and safety teams.

For those organizations that have not already started the process, it is important to begin meeting, discussing and planning now — do not wait until the vaccine is in production.

Questions companies should be asking include: What does the law say? Which federal and state regulations may apply? What do OSHA and its state counterparts say? Are there other regulatory bodies that need to be considered?

Discussing Various Scenarios

There are a number of scenarios the working group should discuss. For example, if they make vaccines mandatory, they will need a plan for medical exceptions, such as requiring a doctor’s note. Or, if vaccines are recommended but not required, there will need to be controls to keep all employees as safe as possible in the workplace.

Decisions will vary according to a variety of factors, some unique to the employer. The industry involved will play a large role — it’s easier to social distance in an office setting than in a manufacturing facility, for example. There may also be special considerations for health care and other industries.

Organizations will discover a maze of logistics to navigate, whichever decision they make. Will they pay for employees’ vaccinations? What about family members? Where will vaccination take place, and how will remote workers receive them? How will they explain their decisions on vaccines to employees? 

No matter how much planning takes place, there may eventually be litigation from employees. This, too, needs to be part of your advance planning and a key reason to involve legal counsel in the process early. 

COVID-19 and the arrival of flu season create many unprecedented challenges for employers. It’s important to keep employees safe, healthy and working. Whichever route an organization takes, promoting vaccination can support employees’ well-being thus better ensuring workplace productivity.

Kelly Thoerig

Employment Practices Liability Coverage Leader at Marsh

Kelly Thoerig is the employment practices liability coverage leader in Marsh’s FINPRO Practice. She is primarily responsible for writing employment practices liability policies, spearheading policy and insurer new product reviews and drafting policy endorsements on behalf of her clients.

Renata Elias

Vice President at Marsh

With more than 20 years of experience, Renata Elias provides counsel and support to clients on a broad range of issues including crisis preparedness and planning, emergency and public safety/security management, crisis communications, humanitarian services response, business continuity, issues management, and reputational risk.

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