Should an Employer Offer the COVID-19 Vaccine at Work?
By: Maryjo Pirages Reynolds
Allen Galluzzo Hevrin Leake, LLC
A lot of practitioners have been writing about whether employers can mandate the COVID-19 vaccine. While likely the answer is ‘yes’, employers should proceed with caution before mandating the vaccine and must attempt to accommodate an employee who declines the vaccine due to a medical disability or sincerely held religious belief. Further, employers should consider other accommodations, particularly remote work, before terminating unvaccinated employees.
Another interesting, but less addressed question is whether employers should serve as points of distribution (PODs) for the vaccine in a similar fashion as is done with flu shots. The benefits of doing so include employee convenience, employee health and morale, and continuity of operations. However, as with all things related to COVID-19, there are logistical considerations, risks, and unknowns.
As to logistics, it is my understanding that the counties in Illinois have been tasked with coordinating vaccination at places of employment. Thus, if interested, you should contact your respective county health department. When doing so, you should inquire about logistics, namely storage given that the vaccine needs to be refrigerated at an extremely low temperature. Other logistical considerations include PPE, security, and personnel.
As to risks, the most obvious risk is potential workers’ compensation liability. This risk also exists in connection with flu shots. Section 11 of the Illinois Workers’ Compensation Act states: “Any injury to or disease or death of an employee arising from the administration of a vaccine, including without limitation smallpox vaccine, to prepare for, or as a response to, a threatened or potential bioterrorist incident to the employee as part of a voluntary inoculation program in connection with the person’s employment or in connection with any governmental program or recommendation for the inoculation of workers in the employee’s occupation, geographical area, or other categories that includes the employee is deemed to arise out of and in the course of the employment for all purposes under this Act.” 805 ILCS 305/11 (emphasis added). Consequently, if an employee gets injured or has an adverse reaction to the COVID-19 vaccine, such injuries may be compensable.
Another consideration is the paperwork utilized in connection with the vaccine. The questions asked may constitute disability-related inquiries which will implicate the Americans with Disabilities Act and require that the questions be job-related and consistent with a business necessity. Note, the EEOC and OSHA have yet to issue guidance on the COVID-19 vaccine.
It is possible that the aforementioned concerns may be alleviated by the Public Readiness and Emergency Preparedness Act which grants immunity to businesses who provide vaccines, such as the COVID-19 vaccine, against any claim “caused by, arising out of, relating to, or resulting from” such vaccination unless there is willful misconduct. 42 USCS 247 et seq. However, this would likely exclude immunity from workers’ compensation claims. Moreover, the scope of this Act, in general, is unknown. For example, to obtain immunity under the Act, the vaccine has to be administered to the appropriate “population.” There is uncertainty whether employees who are under 18 or pregnant employees would be deemed to be included in the appropriate “population” since the vaccine was not tested on individuals in these groups.
All that being said, the benefits may well outweigh the risks and in theory, there is no reason the program cannot operate like the administration of flu shots. However, the unknowns surrounding COVID-19 rightfully give employers pause.