Recent news on Moderna and Pfizer’s encouraging vaccine results have some questioning whether the vaccine should be mandatory. As we have seen with the Universal Mask Order and Targeted Mitigation orders, the Commonwealth of Pennsylvania has the authority to regulate public health. To date, there is no word on whether Governor Wolf will mandate the vaccine. It is understood that certain professions are already required to obtain vaccinations as a condition of job necessity, such as employees working in health care and schools.
The COVID-19 pandemic has required employers to adapt to a rapidly changing work environment involving remote work, flexible leave policies, personal protective equipment (PPE), physical distancing, and other CDC recommended steps to prevent the spread of the virus. Although not foolproof, a mandatory vaccine may assist an employer in providing a safe working environment. Before an employer seeks to mandate the vaccine, the legal nuances associated with such a program must be understood
Under the federal Occupational Safety and Health Act (OSHA) and comparable state law, employers are required to provide a workplace free from recognized hazards. Employers have the right to establish legitimate health and safety standards, policies, and requirements that are job-related and consistent with business necessity.
The U.S. Equal Employment Opportunity Commission (EEOC) has identified two main exemptions to a mandatory vaccine policy. An employee must be given an opt-out if they have a qualifying disability under the Americans with Disabilities Act (“ADA”) which prevents them from receiving the vaccine. Additionally, an employee may have a protected religious exemption from receiving the vaccine.
Current EEOC guidance urges employers to encourage employees rather than mandate the vaccine. Holding vaccine clinics and supporting the cost not covered by insurance to avoid financial barriers are two recommended methods to foster and facilitate a vaccinated workforce. Additionally, employers should consider the following:
- Employers with a unionized workforce will likely need to bargain a mandatory vaccination program as a change to the working conditions
- Employers should develop a policy to explain your expectations and how an employee may request an exemption or accommodation
- Employers will need to develop forms for employees to seek exemption.
- Employers should also be prepared to address accommodations which may include additional PPE or modification of duties in lieu of the vaccine
- Employers should review their insurance policies as to whether an adverse reaction to a mandatory vaccine is covered
- Employers should consider updating job descriptions to address essential functions which would compel mandatory vaccination
As you explore your options on whether to adopt a mandatory vaccine policy, Maiello Brungo & Maiello’s Human Resources & Strategic Compliance team is prepared to assist you to navigate the legal issues associated with a mandatory vaccine policy. MBM is committed to helping you stay prepared during throughout the pandemic and after. Contact us today at 412-242-4400 or info@mbm-law.net.
