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Employer Exposures From Vaccination Mandates

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Employer Exposures From Vaccination Mandates by Applied Systems. With COVID-19 vaccinations now widely available, employers are considering the pros and cons of mandatory inoculation for employees. While it may seem like a fully vaccinated workforce would decrease your risks, a vaccine mandate could open your company up to new risks, complaints and unexpected – or uninsured – legal defense costs.

Both workers’ compensation and employment practices liability issues may crop up. Depending on the terms of your insurance policies, the decision to offer or require COVID-19 vaccinations could be a two-edged sword – and your company could face harm either way you go. It’s important that management (and your board, if you have one) consider both options: mandating and not mandating vaccinations for employees.

No mandate: Employees can decide

While many employers are planning to offer vaccinations at work and/or cover the costs of vaccination, they are not mandating the shots.

This course of action gives employees control over the decision, though it could open employers up to complaints (from employees and customers alike) that the workplace isn’t as safe as it could be. While many states have executive orders or laws that protect companies from being found liable for the spread of the illness if they practice government guidelines on sanitation, they might not preclude the possibility of lawsuits. Many insurers are excluding coverage for pandemic-related liability complaints, so it’s important to understand how your policies would cover your legal defense costs if you were to be sued.

An employer that doesn’t mandate vaccines for all employees may also have employees who refuse to return to work, citing fear of the virus. Many people, even if they themselves are vaccinated, worry about picking up the virus at work and passing it along to others who are unvaccinated. Alternately, some people who cannot get vaccinated for medical or other reasons may feel more secure if nearly everyone else at work has gotten their shots.

You will need to weigh these concerns and develop thoughtful responses. Education on how vaccines work and on how to prevent transmission may assuage a lot of fears. You might also consider offering cost coverage for employees’ family members to be vaccinated. That could allay concerns over transporting the virus via a nonvaccinated co-worker.

Remember that workers’ compensation insurance typically excludes contraction of communicable diseases that are not directly caused by an employee’s job duties. Workers who opt not to get vaccinated and then get COVID-19 – even if at work – would not be covered for lost income or treatments under a workers’ comp policy unless they are in one of the few industries with mandatory coverage in some states.

Mandate: Employees must get vaccinated

With all that said, it would appear that mandating vaccinations as a condition of employment – or at least as a condition of returning to the workplace or normal work duties – could be a good option. But vaccine mandates are fraught with risk exposures.

The first, biggest concern is employee refusal to participate. There are many reasons an employee might decline vaccination, and some of those are protected by law. If a refusal is covered under the federal Americans with Disabilities Act (ADA)equal , a religious exemption, or some other right to decline, you must be ready to work with the employee to find a reasonable accommodation. For more information, check out the guidance materials from the Equal Employment Opportunity Commission (EEOC).

Another worry is that an employee who does comply might be injured by the vaccine. If that injury is severe, would the employee be covered for treatment and lost wages under workers’ compensation or any other company liability policy? You should discuss all of the angles with your insurance professional before issuing any mandates.

You should also develop a policy that deals with prior immunity. For example, an employee may refuse the vaccination and demand instead that they be permitted to demonstrate the existence of antibodies. Will this be acceptable? If so, who will pay for the test? How will this be recorded in your log of vaccinations? How will you work around the fact that it’s not yet known how long immunity (whether from vaccination or prior infection) lasts?

If you implement a vaccination mandate, you must be prepared for the administrative burden of recordkeeping, confidentiality, exemptions, changes of law or regulation, leave and pay policy for those claiming an adverse reaction, reporting to local immunization registries (if your vaccination provider does not take up this responsibility), follow-up for adverse events, follow-up for boosters or second doses, and accommodations for those who cannot or will not get vaccinated.

Consider how an employee will demonstrate either full vaccination or prior immunity. Will you accept paper documentation? Electronic? How will you verify the authenticity of paper documents? How will you keep these records? Who will have access to them? What if an employee who has provided proof of vaccination or immunity gets COVID-19 anyway? What are your plans for new strains of the virus?

Uniform enforcement and thorough documentation of a vaccination mandate are complicated but imperative, and clear communication of all aspects of your policy to all employees is necessary. That includes exemptions, accommodations and privacy protocols.

If you are requiring vaccination as a condition of employment, there is a good case to be made that you should pay for it in full, including pay for the time it takes to get the shots. If your workforce is unionized, you may need to work with union representatives regarding your mandate.

Data challenges

While some employers have long required influenza vaccinations for employees, the practice is not widespread outside the health care industry, and most employees have not previously been required to get vaccinated for anything. A new mandate, especially in light of an anti-vaccination media campaign, might generate pushback.

Employers should be prepared with data to back up their mandate; otherwise, employees may successfully challenge a requirement as unnecessary, unvetted or potentially dangerous.

Supporting a vaccination mandate using current data will be difficult for a variety of reasons, so engaging a health expert with specific knowledge on COVID-19 may be your best way to respond to naysayers. Current data on the vaccine are based on short-term clinical trials that have not established the duration of immunity. Additional data and research continue to accumulate, so employers might wish to wait for more information before instituting a mandate.

It is also important to integrate the various vaccines’ date-to-immunity data into your return-to-work plans. Immunity to COVID-19 isn’t acquired upon the first dose and isn’t immediate upon the second. It is crucial for employers to understand which version of the vaccine is being used and the delay in acquired immunity. If inoculated workers come back to normal duties before the vaccine takes effect, they may well contract and transmit the virus.

Finally, keep in mind that no vaccine is 100% effective, even if all proper administration protocols are followed. A small percentage of people who are properly vaccinated will wind up getting COVID anyway. 

Consider your options carefully

Obviously, this is a complicated decision with lots of factors to consider. Take your time and carefully research the implications for your company’s liability potential and your insurance coverage. Your insurance professional is an invaluable resource as you weigh the pros and cons of a COVID vaccine mandate.

This content is for informational purposes only, should not be considered professional, financial, medical or legal advice, and no representations or warranties are made regarding its accuracy, timeliness or currency. With all information, consult with appropriate licensed professionals to determine if implementing any recommendations would be in accordance with applicable laws and regulations or to obtain advice with respect to any particular issue or problem.

Copyright © 2021 Applied Systems, Inc. All rights reserved.

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