COVID-19 Vaccine Considerations for Business Owners

Biotech firms Pfizer and BioNTech announced on Nov. 9 that their COVID-19 vaccine has demonstrated evidence of 90 percent efficacy against the disease. As the world continues to move closer to a vaccine that will prevent the spread of the coronavirus, some business owners may wonder if they should ask their employees to get the vaccine. Other employers, depending on the industry they’re working in, may decide to require a vaccine as a condition of employment.

Is an employee vaccine mandate necessary to keep your place of business safe from COVID-19?

Employers may wonder if mandating a vaccine is necessary, or whether health and safety can be maintained in other ways. Businesses will need to evaluate if remote work, physical distancing, ongoing cleaning and disinfecting, daily screenings, face-coverings, and other Centers for Disease Control (CDC) and Michigan Department of Health and Human Services recommendations intended to slow the spread of COVID-19 are sufficient.

Preparation is important for those considering a mandate

Business owners who decide to mandate the vaccine should prepare to review and administer numerous requests for accommodations, which may include increased use of personal protective equipment, modifications of job duties, and permanent or temporary transfers to other departments.

Also, under the National Labor Relations Act, employers will likely need to negotiate the effectuation of a mandated vaccine initiative with unions. Employers should prepare for the possibility of collective bargaining if mandating a vaccine.

Another consideration employers should weigh before implementing the COVID-19 vaccine is the possibility of an employee developing a negative physiological reaction to the medication. Business owners should review their insurance policies and state workers' compensation laws before implementing a mandate.

Also, employers should weigh if vaccinating the entire staff is essential. Employers may want to consider mandating the vaccine for some departments that are considered high-risk but leave the shot as an option for other workers.

Emergency Use Authorization

Manufacturers of the vaccine may request Emergency Use Authorization (EUA), allowing for distribution prior to full approval from the Food and Drug Administration (FDA). Under EUA, it is not clear if it is legal for an employer to mandate a vaccine that has yet to be fully approved for safety under the FDA. If the vaccine is distributed through EUA, business owners should consult with their attorneys before imposing any mandate.

Some employers may wish to consider encouraging their employees to take the vaccine instead of a mandate. A survey by the O’Neill Institute for National and Global Health at Georgetown Law school revealed that over 61 percent of employees would get the COVID-19 vaccine if recommended by their employer. Some large employers are already encouraging their employees to take the vaccine and are preparing to make it available at the worksite for interested employees.

Help is available

The business attorneys at O’Reilly Rancilio are available to answer your questions regarding employment law in the COVID-19 era. For information, call 586-726-1000 or visit our website.