Many employers are hopeful that a vaccine for COVID-19 will be the silver bullet that will enable employers to return to some semblance of a pre-COVID workplace. Assuming a vaccine is developed, can an employer mandate that employees be vaccinated before coming back to work? What happens when an employee cannot or will not take this vaccine, either for religious, medical, or other personal reasons? Can a union or group of workers successfully challenge employer-mandated vaccines? Aside from these potential challenges, are mandatory vaccinations the most appropriate response in fighting COVID-19?
This Report reviews the legal landscape as it pertains to employer-mandated vaccines, and as important, whether options other than mandated vaccines need to be considered by the employer community. As discussed below, the case developments to date primarily have involved vaccination programs to minimize flu-related risks, particularly by employers in the health care field. These case developments, however, can serve as a critical guidepost in helping employers take appropriate action as vaccinations are developed for COVID-19.
It clearly is not too early for employers to be carefully evaluating their options. Based on recent reports from the Centers for Disease Control and Prevention (CDC), preparations are underway for two coronavirus vaccines referred to as "Vaccine A" and "Vaccine B," and the CDC recently advised public health agencies that limited doses of a vaccine may be available in late October or November 2020. The first doses of another vaccine, being developed by the University of Oxford in tandem with a major pharmaceutical company, also may be available in the United States by the end of 2020.
Despite the sense of urgency in developing and receiving approval for a COVID-19 vaccine, the employer community needs to be aware that there will be some significant delays until a vaccine is available for the general public. According to the CDC, a priority list has been developed for those who will eligible to receive the vaccine, which will be a four-phase process.
All of these factors need to be taken into consideration in developing a plan of action in dealing with a vaccine. As important, even after a vaccine is developed, many unanswered questions may remain. Are certain vaccines more effective than others? Will the effectiveness of a particular vaccine vary depending on an individual's health status and/or age? For how long will a vaccine be effective? Are there any side effects that may pose greater risks to certain individuals? In short, there may be a multitude of issues that will need to be addressed as employers weigh their options.
From an employment perspective, employers need to take into account a broad range of issues, including but not limited to equal employment opportunity compliance, labor relations, workers' compensation, employee safety and other evolving issues, including the anti-vaccine movement.
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