By Donna Motley, Vice President of Claims

We have received many requests in relation to whether or not employers can mandate COVID-19 vaccinations for their employees. I reached out to one of our attorneys, William Buie of Conklin Benham to provide information that could be shared with our policyholders. Below is the information that I received from him:

The U.S. Equal Employment Opportunity Commission (EEOC) recently issued guidance stating that employers can generally mandate Covid-19 vaccines for employees who physically enter the workplace without violating federal antidiscrimination laws. However, employers requiring employees to get vaccinated need to consider religious and disability related objections and explore reasonable accommodations that may be required under the Americans with Disability Act.

Employers should consult with their labor attorney before implementing a vaccine requirement for employees covered by a collective bargaining agreement.

Pursuant to the Occupational Safety and Health Administration (OSHA) at the federal and state level, employers have a duty to provide a workplace free from serious recognized hazards that cause or are likely to cause death or serious physical harm to its employees. This could mean requiring the vaccine, providing personal protective gear, or setting capacity limits in the physical workplace. Mandatory vaccine policies are common in high-risk industries such as health care, where employees work with the public, or where employees work in close proximity to each other.

If an employer mandates vaccinations, it should establish a process that will allow employees to seek exemptions for legitimate medical or religious purposes. However, the request can be denied if it is not based on a legitimate medical or religious reason or if the request will cause an undue hardship, such as posing a direct threat to employees or third parties. An individual with a disability that poses a direct threat to the workplace despite reasonable accommodations being available is not protected by the Americans with Disability Act. Again, the EEOC has already determined that Covid-19 is a direct threat to workplaces.

If an employer implements a mandatory vaccination policy, the employer is permitted to ask for proof of vaccination without violating the Americans with Disability Act or HIPPA rules.

If vaccines are mandated (and especially if the vaccines are administered on site), the employer could be liable under the Workers’ Disability Compensation Act (WDCA) for an employees’ adverse reaction to the vaccine. The employee could argue that there is a substantial benefit to the employer since the employer has made the vaccine mandatory. There is a Michigan case involving an employee who suffered a nerve injury from a blood draw taken at the employer’s place of business in conjunction with an employer provided life or disability insurance application process that was found compensable. The Michigan Court of Appeals ruled in the employee’s favor on the presumption because the blood draw took place on the employer’s premises. The Michigan Supreme Court ruled that the presumption only applies to the “in the course of” requirement and not to the “arising out of” requirement, but held that on the facts, the benefit to the employer was sufficient to make the injury compensable. However, as a practical matter, it would be rare for a vaccination reaction to be severe enough to cause an employee to miss seven consecutive days of work, a requirement for wage loss benefits under the WDCA.

On September 9, 2021, President Biden announced that the U.S Department of Labor is developing an emergency rule that will require all employers with 100 or more employees to ensure that their employees are either fully vaccinated or present a negative Covid-19 test at least once a week. We are waiting on further clarification regarding this rule.