Wednesday, August 4, 2021

Coronavirus Update 8–4–2021: The dam is breaking on mandatory Covid vaccines, and the flood is coming

The news on mandated Covid vaccinations is coming fast and furious, from courts, governments, and private businesses.

The 7th Circuit Court of Appeals ruled that Indiana University's mandatory vaccine requirement for students does not violate the Due Process Clause of the Constitution's 14th Amendment.

New York City will start requiring proof of Covid vaccinations from employees and customers of indoor eateries, gyms and entertainment centers.

Finally, and most significantly, Tyson Foods, which has had its own Covid problems during the pandemic, is now mandating the vaccine for all of its 120,000 office and factory workers. This is important, as it's the first instance of a major employer mandating the vaccine for its blue-collar workers. 

In a memo to employees explaining the decision, Tyson CEO Donnie King wrote: "We did not take this decision lightly. We have spent months encouraging our team members to get vaccinated—today, under half of our team members are … We take this step today because nothing is more important than our team members' health and safety, and we thank them for the work they do, every day, to help us feed this country, and our world."

If your business is thinking about riding this wave and mandating the vaccine for your on-site employees as a means to get as many people vaccinated as possible to squash Delta's surge, here are the eight biggest questions you need to be thinking about.

     1/ How will you accommodate employees' disabilities, religious beliefs, and pregnancies (or desires to become pregnant)? The EEOC is very clear that these exceptions are required. Note, however, that at least as to religion, the exception is quite limited. My research reveals that only two religions that hold a negative stance on vaccinations are Christian Scientists and the Dutch Reformed Church. Also note that just because an employee seeks an accommodation for one of these reasons does not mean you need to permit the unvaccinated into your workplace. You'll need to discuss potential accommodations with the requesting employee during the interactive process, which could include continued masking, daily negative Covid tests, changed shifts or work locations, remote work, or an unpaid leave of absence.

     2/ How will you track vaccination status? Will you collect copies of vaccine cards, accept a digital passport, or simply take employees at their word that they are vaccinated?

     3/ Are any of your employees represented by a union? If so, you might need to bargain with that union before implementing a vaccine mandate for those employees. And there is a real split among unions on this issue.

     4/ Will you advise employees that the choice to get vaccinated remains theirs (just as the choice to keep them employed remains yours)? You should (and, the Emergency Use Authorization statute might require that you do so), as long as employees also understand the consequences of exercising their choice not to get vaccinated. 

     5/ How will you educate your employees about the safety of the vaccines? The CDC provides a great toolkit for employers. The point is that you'll lose some vaccine-hesitant employees as employees unless you can sufficiently educate them about the vaccine's safety and make them comfortable about receiving it. 

     6/ Are employees receiving paid leave for time spent getting the vaccine and any side effects they might have following the vaccine? If you've opted into the FFCRA for this year, this is mandatory paid leave, at least until that extension expires at the end of September. Thereafter, and regardless, President Biden and I believe that employers should be providing this leave as a matter of course.

     7/ Can employees claim workers' comp from any resulting vaccine side effects? This is an open and unsettled issue. I believe, however, that employees have a very good argument that side effects from an employer-mandated vaccine are work-related injuries for which an employee can claim and collect workers' comp.

     8/ Are you prepared to lose employees? With a certain percentage of your employees being vaccine hesitant or flat-out anti-vax, some will make the decision to quit instead of accepting the jab. With the hiring market as difficult as it is, you should understand that a vaccine mandate might result in job vacancies that might be hard to fill. 

The bottom line is that because of where we are with Delta and Covid's 5th, and perhaps most significant, wave, we have reached the point at which the pros of a vaccine mandate far outweigh the cons. As I wrote earlier this week, "The only way we are going to stop this virus is the only way we were ever going to stop it — getting enough people vaccinated. With vaccination rates only hovering around 50 percent we are losing that battle, and therefore losing the war against Covid." 

If you are considering riding this wave and implementing a vaccine mandate for your business, and you want to run your thoughts by an attorney and document your mandate in a policy, you know how to reach me.