Vaccines in the Workplace COVID-19
Eight considerations for employers
By Lisa Griffin Hodgdon and Jason Lambert, Dinsmore & Shohl LLP
Three vaccines, one from
Moderna Inc., one from Pfizer
Inc., and one from Johnson
& Johnson, have been approved for
emergency use in the U.S. by the Food
and Drug Administration as of February
2021, and there are other vaccines in
late-stage clinical trial phases. Employers
across the country are contemplating
whether to mandate their employees
receive the COVID-19 vaccine as a
condition of employment and evaluating
the risks associated with mandating or not
mandating the vaccine.
On Dec. 16, 2020, the U.S. Equal
Employment Opportunity Commission
(EEOC) issued new guidance to assist
employers considering mandating COVID-
19 vaccines. The guidance addressed
some of the risks employers must weigh
in evaluating a mandate. In particular,
it warned employers their COVID-19
vaccination policy could be impacted by
other EEOC laws, such as the Americans
with Disabilities Act (ADA), Title VII of the
Civil Rights Act of 1964 (Title VII) and the
Genetic Information Nondiscrimination
Act (GINA).
Below are common questions facing
employers contemplating a COVID-19
vaccine requirement:
1. What are an employer’s options
when it comes to administering
the COVID-19 vaccine
for employees?
Some employers are considering entering
into agreements whereby they will be
considered a closed point-of-dispensing
site and administer vaccines to its
employees onsite. Administering vaccines
onsite raises many liability concerns, and
employers considering this should seek
legal advice. Alternatively, some employers
are considering providing vaccines to
employees through third-party vendors,
and others are requiring or encouraging
employees to obtain the vaccine on
their own.
2. What if a state
adopts a law prohibiting
mandatory vaccinations?
There is proposed legislation pending
in several states which would preclude
state and local governments and private
businesses from requiring COVID-19
vaccinations. Some of the proposed laws
apply only to state and local governments;
however, some of the proposed laws apply
to private employers. If a state adopts a
law prohibiting mandatory vaccinations,
the federal government’s ability to allow
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