b'LEGALLY SPEAKING CSIA 19Although mandatory vaccinations are controversialharm to others, which permits employers to adopt and have received much national attention in recentmedical testing and screening methods that the ADA weeks, employer-mandated vaccinations are not new.normally would prohibit.Actually, employers have implemented mandatory vaccination policies for years, most often in healthcareOSHA also weighed in on employer-mandated settings where employees often interact with high- vaccination programs during the H1N1 virus outbreak in risk and vulnerable populations. The general rule is2009. It said that an employee who refuses vaccination that mandatory vaccination policies are permissiblebecause of a reasonable belief that he or she has a in the midst of a pandemic so long as employersmedical condition that creates a real danger of serious consider certain exemptions, such as religious andillness or death . . . may be protected under Section medical accommodations, as required under Title11(c) . . . pertaining to whistle blower rights. OSHA VII of the Civil Rights Act of 1964 and the Americansdid not then require employees to take vaccines.with Disabilities Act, respectively.Aside from exemptions, employers should consider Neither OSHA nor the EEOC has yet weighed ina number of other factors before implementing a on an employer-mandated COVID-19 vaccine.But,mandatory vaccination program, such as objections we can look to past guidance as a predictor for futurebased on ethical considerations or risks associated administrative agency direction and begin planningwith taking a vaccine lacking demonstrated safety a course of action now.protocols or documented side effects and efficacy rates. Employers should also recognize the potential During the 2009 H1N1 virus, the EEOC indicatedfor workers compensation claims due to adverse that employers could not compel all employees to takereactions from a mandatory vaccine.Employers with an influenza vaccine without providing exemptions fromunionized workforces must also consider whether the a mandatory vaccination requirement based on medicalcontrolling collective bargaining agreement provides conditions that prevent an employee from taking thefor broad management rights to implement a vaccine influenza vaccine or sincerely held religious beliefspolicy or whether such a policy requires bargaining and practicesnot personal preference or generalwith the union. Under either circumstance, effects fear. The EEOC confirmed that, barring an unduebargaining would be required.hardship of the employer, such as significant difficulty or expense associated with the accommodation,Employers should also consider the potential employees may be entitled to an exemption from afor civil liability for not mandating a vaccination mandatory vaccination.when one becomes available under the theory that the employer failed to take adequate precautions to In its 2009 guidance, the EEOC suggested thatprotect its workforce. On the other hand, employers ADA-covered employers consider simply encouragingwill have to balance that consideration with the threat employees to get the influenza vaccine rather thanof employee refusals to work or to be vaccinated on requiring them to take it.This guidance was re-issuedthe basis of Section 11(c) of the OSH Act. in March of 2020 to incorporate updates related to COVID-19, including an acknowledgement that theIn addition to the plethora of legal considerations, COVID-19 pandemic meets the ADAs direct threatemployers must also contend with the political and standard, which permits more expansive medicalcultural implications of such a policy.A number of inquiries and workplace controls by an employerstudies show that approximately one-third of the than the ADA typically allows.But, the basic adviceworkforce would refuse a COVID-19 vaccine if one related to vaccines was left unchanged, except towere available. With the large numbers of employees note that a COVID-19 vaccine was not yet available.resistant to wearing facial coverings in the workplace, A direct threat finding means that an individual withwhich is far less intrusive than a mandatory vaccine, COVID-19 poses a significant risk of substantialemployers can expect to see similar (or greater)(continued on pg 20)csiaonline.org'