No Vaccination – No Employment?


No Vaccination – No Employment?

As vaccines are gradually being rolled out to cover all citizens, employers are beginning to contemplate what the vaccine’s availability will mean for them.   Employers have an obligation under OSHA (Occupational Safety and Health Administration) to provide a safe and healthy work environment.  Up until now, OHSA has provided guidance to assist employers to identify the risks of being exposed to and contracting COVID-19 in the workplace AND to determine any appropriate control measures, such as distancing, barriers, face coverings and other PPE measures, to implement.

The questions employers are now facing, with the emergency vaccine rollout, is “Can I require existing employees to receive the COVID-19 vaccine as a condition of employment, and can I refuse to hire someone who has not received a COVID-19 vaccination, or refuses to do so?”  At present there seems to be no law or regulations that addresses mandatory vaccination of the workforce, (although many front-line workers are currently required to receive certain vaccinations as a condition of employment).  However, considering how OSHA already addresses vaccines could help employers approach COVID-19 vaccination questions before a standard is put into place.  (OSHA does currently have a standard that addresses vaccines, the bloodborne pathogen standard, which addresses Hepatitis B).

Vaccine Passports?

Recent discussions in the UK indicate that it may be legal for companies to insist on new members of their staff being vaccinated as condition of their employment.  Vaccine passports may be required for employment as well as other situations such as vacation travel.  Some companies are going as far as rewriting their employee contracts to make vaccination compulsory. However, since there is no mandatory vaccination requirement, from the government, employers do run the risk of facing discrimination charges.

In Zimbabwe, the president has gone one step further, threatening to punish those who refuse vaccination.  “You are not going to be forced to be vaccinated, but the time shall come when those who are not vaccinated won’t get jobs,” President Emmerson Mnangagwa said on Wednesday.  NY Times

In the United States however, employers now have some clarification that they will be able to mandate the COVID-19 vaccine among their workers in certain circumstances without facing anti-discrimination laws, according to updated guidance issued Wednesday by the Equal Employment Opportunity Commission. While there are numerous issues to consider before mandating that all employees get vaccinated, this guidance is the first official pronouncement on the subject from the employment law watchdog agency and provides an outline of various hurdles to overcome. Here are top seven takeaways for employers from this development.

It’s complicated.

However, the situation is extremely complicated.  “It would be breaking new ground to hold employers liable for not requiring vaccination,” said Lindsay Burke, an attorney with Covington in Washington, D.C. “On the other hand, if public health authority guidance adopts the view that employers should not permit unvaccinated employees into the workplace, one might imagine this issue being a factor in tort litigation over whether appropriate safety protocols were followed by an employer.” SHRM

Conclusion

Although there are currently no laws or regulation mandating vaccinations of employees in the general workplace most employers should consider encouraging vaccinations due to potential related risks.  “Employers should weigh the legal exposure and other risks associated with any mandatory vaccination program and assess whether the alternative of voluntary vaccination may be a better option based on the nature and needs of their businesses”.  National Law Review

Whether you simply encourage or mandate vaccinations, employers should be prepared with at least a policy framework, (employee handbook), and a communications plan as an even wider availability of vaccines draws closer.

At the date of this writing, DSML Executive Search has not encountered any vaccination requirements, nor vaccine related employment enquiries, from any of our Chicago office and Boston office clients.

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