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Mandating COVID-19 Vaccine

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Even though a vaccine to prevent COVID-19 isn't available yet, it's not too early for employers to start considering whether they will require employees to get the vaccination when it is ready.

The Equal Employment Opportunity Commission (EEOC) has yet to issue guidance on a COVID-19 vaccine, so employers should look to the EEOC's guidance on the flu vaccine for now, said Arielle Eisenberg, an attorney with Cozen O'Connor in Miami.

The EEOC has advised that flu vaccinations may not be mandated for all employees. Exceptions must be made for disability or religious accommodation requests. Proper notice must be provided as well.

"Because the exceptions make this general rule look a bit like Swiss cheese, the EEOC has advised as a best practice that employers should consider encouraging, rather than requiring, employees to get the flu vaccine," said Michelle Strowhiro, an attorney with McDermott Will & Emery in Los Angeles and Orange County, Calif.

Read the rest of the article:
Can Employers Make Vaccines Mandatory in a Pandemic?
SHRM | Sep 2020

Can I Get Fired for Refusing Vaccinations?
SHRM HRQA | May 2020

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Law Firm Articles

As the flu season approaches and the COVID-19 pandemic continues, employers' mandatory vaccination policies may soon become more important than ever. For several reasons, those policies will also attract unprecedented scrutiny. First, the Centers for Disease Control (CDC) has stated that getting the flu vaccine this fall will be all the more important, both to reduce health risks for individuals and to conserve the country's potentially scarce healthcare resources, particularly for respiratory conditions like the flu and COVID-19.
Flu Season And Possible COVID-19 Vaccine Will Shine A Spotlight On Workplace Vaccination Policies
Fisher Phillips | Aug 2020

From an employment perspective, employers need to take into account a broad range of issues, including but not limited to equal employment opportunity compliance, labor relations, workers’ compensation, employee safety and other evolving issues, including the anti-vaccine movement.
The Race for a COVID-19 Vaccine – Planning for the Employer Response
Littler | Sep 2020

Once a COVID-19 vaccine is approved, both federal and state authorities are almost certain to issue further guidance and/or regulations governing vaccinations in the workplace. In particular, employers may want to keep an eye on developments at the state level. Any such laws could significantly alter the undue hardship analysis under Title VII and the ADA if they mandate vaccinations to preserve the health and welfare of citizens (or subgroups, based on industry or job duties).
Mandatory COVID-19 Vaccination: Is It Legal and Is It Right for Your Workplace?
Ogletree | Sep 2020

The EEOC has not yet weighed in on this question specifically for COVID-19, but in 2009 the agency released a technical-assistance publication asserting that under the Americans with Disabilities Act (ADA) and Title VII, employers cannot impose mandatory vaccination requirements on employees who qualify for certain exemptions, such as employees with certain medical conditions or religious beliefs, even in the midst of a pandemic. Although the EEOC guide was updated in March 2020 for COVID-19, the vaccination guidance remains the same (as of August 20, 2020).  Of course, the actual emergence of a COVID-19 vaccine could change that. Employers should check this guidance for further updates once a COVID-19 vaccine emerges.
Can You Require Your Employees To Get Vaccinated When A COVID-19 Vaccine Becomes Available?
Husch Blackwell | Aug 2020

For now, the questions remain hypothetical.  Until a vaccine is made available and we have more information about its efficacy and risk factors, it is difficult to answer these questions in a vacuum.  Nevertheless, employers ought to start thinking about their proposed approach to COVID vaccinations so that they are ready to implement a plan when the time comes (hopefully in the not-too-distant future).
Mandatory COVID-19 Vaccines: Coming to a Workplace Near You?
Foley & Lardner | Aug 2020

Federal law does not provide the sole guidance regarding mandatory vaccination programs for the private, non-healthcare workforce. State law, which often raises the bar considerably above the Federal statutory floor, especially for small employers, should also be consulted before putting a mandatory vaccination program in place.  The CDC lists many of the current state vaccination laws related to healthcare workers (who are generally required to undergo a variety of mandated vaccines) as well as educational requirements for students.
Vaccinate or Terminate – Mandatory Vaccination As Workplace Policy
Mintz | Jul 2020

Employers must also consider that employees may respond negatively to a vaccination requirement, and adverse reactions to the vaccine could lead to workers' compensation claims. Accordingly, employers contemplating any policy mandating a COVID-19 vaccine should be prepared to carefully consider the threat posed to the health and safety of their employees, the risk of future claims, and employee morale.  Moreover, employers must be prepared to carefully consider the reasons for any employee requests for exemptions.
A Vaccine is Coming: Can Employers Require Employees to Take it?
Polsinelli | Jul 2020

Index of COVID-19 Express Requests

Reopening Your Workplace
Reopening Your Workplace: Overviews
Masks/Face Coverings in the Workplace
Tips for Wearing a Mask in Summer
Recalling/Rehiring Employees
When Employees Refuse to Return to Work
Addressing Fears About Returning to the Workplace

Testing | Screening | Diagnosis | Vaccine
Testing Employees for COVID-19
Taking Employee Temperatures
Antibody Testing (or Not)
Responding to Employee's COVID-19 Diagnosis
Contact-Tracing in the Workplace
Mandating COVID-19 Vaccine

Employee Relations
Preventing COVID-19 Related Workplace Violence
Employee Travel Amid the Pandemic
Updating an Employee Handbook for COVID-19
Shadow Pandemic: Rise in Domestic Violence
COVID-19 Liability Waiver Considerations
Encouraging Employees to Take Time Off
Vacation Policy Changes Amid Pandemic
Heat Illness Prevention Amid COVID-19
Accommodating Workers at Higher Risk for Severe Illness
COVID-19 Myth Busters
EEOC Updates Coronavirus-Related Guidance
Communicating with Employees

Remote Workers
Remote Workers' Expense Reimbursement
Allowing Telework
Engaging Remote Workers
Remote Work & State Tax Issues
Monitoring Remote Workers
Combatting Zoom Fatigue

Talent Acquisition
Form I-9 Flexibility Due to EAD Production Delays
Virtual Onboarding
Preemployment Background Checks During COVID-19
Completing Form I-9 for Remote Workers
Documenting an Expired Driver's License on I-9 and E-Verify
Executive Order Restricts Employment-Based Immigration

Families First Coronavirus Response Act (FFCRA)
FFCRA: School Reopening (or Not) Plans
General (Overviews, DOL Resources, More)
IRS FAQs on Tax Credits & Required Documentation
Decision Flow Charts
Valuing Health Plan Costs for Tax Credits

Coronavirus Aid, Relief and Economic Security (CARES) Act
Overviews of Implications for Employers
Employee Retention Tax Credit
Business & Nonprofit Relief
Employee Benefit Plan Provisions
Paycheck Protection Program (Loan Forgiveness)
Unemployment Expansion & Extension
Potential Relief for Government Contractors
Valuing Health Plan Costs for Tax Credits

Compensation and Benefits
Lost Wages Assistance (Unemployment Benefits)
DOL on Tracking Teleworkers' Hours
Workers' Payroll Tax Deferral
Virtual Benefit Fairs
Health Carrier COVID-19 Premium Credits
COBRA Deadlines Temporarily Extended
Various Benefit Plan Deadline Extensions
Survey Reports: Pay Adjustments Amid COVID-19
Families First Coronavirus Response Act (Paid Leave; Enhanced FMLA; More)
USERRA and COVID-19
Reducing Employer's Retirement Plan Contribution/Match
U.S. Wage and Hour Issues
Making Tax-Favored Disaster Relief Payments to Employees
Leave Donation Programs
IRS Relaxes HDHP Rules

Layoffs and Alternatives to Layoffs
Pay Reductions
Shared-Work/Work Share Programs
Layoff Alternatives
Worker Adjustment and Retraining Notification (WARN) Act
California EDD Work Sharing Program
Please also see under CARES Act (above):
Employee Retention Credit
Paycheck Protection Program

Essential Businesses and Workers
Essential Business Designation
Essential Workers: Identifying

General
Employer Resource Centers (U.S. and Global)
Preparedness Plan
Beware Phishing Scams

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