b'Legally SpeakingMANDATORY VACCINATIONS:expansive medical inquiries and workplace controls by an employer than the ADA typically allows.But, the basicWHAT EMPLOYERS NEED TO KNOW advice related to vaccines was left unchanged, except to note that a COVID-19 vaccine was not yet available.A By Bob Dunlevey direct threat finding means that an individual with COVID-19 poses a significant risk of substantial harm to others, which permits employers to adopt medical testing and It is not a matter of if, but when a COVID-19screening methods that the ADA normally would prohibit. vaccination will become available. With an approved vaccine on the horizon, employersOSHA also weighed in on employer-mandated vaccination obligated to provide a safe workplace freeprograms during the H1N1 virus outbreak in 2009. It said from recognized hazards naturally are that an employee who refuses vaccination because of a beginning to question whether, and under what circum- reasonable belief that he or she has a medical condition stances, they should require employees to get a COVID-19that creates a real danger of serious illness or death . . . vaccination. may be protected under Section 11(c) . . . pertaining to whistle blower rights. OSHA did not then requireAlthough mandatory vaccinations are controversial anemployees to take vaccines. have received much national attention in recent weeks, employer-mandated vaccinations are not new. Actually,Aside from exemptions, employers should consider aemployers have implemented mandatory vaccinationnumber of other factors before implementing a policies for years, most often in healthcare settings wheremandatory vaccination program, such as objections based employees often interact with high-risk and vulnerable on ethical considerations or risks associated with taking a populations. The general rule is that mandatory vaccine lacking demonstrated safety protocols or docu-vaccination policies are permissible in the midst of a mented side effects and efficacy rates. Employers should pandemic so long as employers consider certain also recognize the potential for workers compensation exemptions, such as religious and medical claims due to adverse reactions from a mandatory vaccine.accommodations, as required under Title VII of the CivilEmployers with unionized workforces must also consider Rights Act of 1964 and the Americans with Disabilities Act,whether the controlling collective bargaining agreement respectively.provides for broad management rights to implement a vaccine policy or whether such a policy requires bargaining Neither OSHA nor the EEOC has yet weighed in on an with the union. Under either circumstance, effectsemployer-mandated COVID-19 vaccine.But, we can look bargaining would be required. to past guidance as a predictor for future administrative Employers should also consider the potential for civilagency direction and begin planning a course of action now. liability for not mandating a vaccination when one becomes During the 2009 H1N1 virus, the EEOC indicated thatavailable under the theory that the employer failed to take adequate precautions to protect its workforce. On theemployers could not compel all employees to take an influenza vaccine without providing exemptions from aother hand, employers will have to balance that considera-mandatory vaccination requirement based on medical tion with the threat of employee refusals to work or to be conditions that prevent an employee from taking thevaccinated on the basis of Section 11(c) of the OSH Act.influenza vaccine or sincerely held religious beliefs and practicesnot personal preference or general fear. TheIn addition to the plethora of legal considerations, employ-EEOCconfirmed that, barring an undue hardship of theers must also contend with the political and culturalemployer, such as significant difficulty or expense implications of such a policy.A number of studies show associated with the accommodation, employees may bethat approximately one-third of the workforce would refuse entitled to anexemption from a mandatory vaccination. a COVID-19 vaccine if one were available. With the large numbers of employees resistant to wearing facial coverings In its 2009 guidance, the EEOC suggested that ADA-coveredin the workplace, which is far less intrusive than aemployers consider simply encouraging employees to getmandatory vaccine, employers can expect to see similar (or the influenza vaccine rather than requiring them to takegreater) defiance against a mandatory vaccine.it.This guidance was re-issued in March of 2020 to incorporate updates related to COVID-19, including anWith these considerations at the forefront, employers acknowledgement that the COVID-19 pandemic meets thewould be well-served to take steps now to prepare for the inevitable release of a COVID-19 vaccine:ADAs direct threat standard, which permits more Page 16CONSTRUCTION JOURNAL'