January 24, 2022

Volume XII, Number 24

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January 24, 2022

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Nine Things Employers Should Know About the COVID-19 Vaccine

Early this week, trucks carrying the first doses of the COVID-19 vaccine began arriving at distribution points throughout United States.

Anticipating this distribution and appearing before the Michigan legislature's Joint Select Committee on the COVID-19 Pandemic earlier this month, Michigan Department of Health and Human Services Director Robert Gordon said that the agency is not considering a statewide coronavirus vaccine mandate. Nonetheless, many employers wonder whether—and when—their companies can require employees to take advantage of the vaccine.

There is currently no law or regulation directly addressing whether employers may mandate vaccination for COVID-19, but employers can gain some insight from companies' ability to mandate the flu vaccine. Generally speaking, the Equal Employment Opportunity Commission (EEOC) does not prohibit employers from mandating the flu vaccine, as long as such requirements are job-related and consistent with business necessity. Mandatory vaccination policies are controversial, particularly outside the health care industry, and the EEOC has stated that "generally, ADA-covered employers should consider simply encouraging employees to get the influenza vaccine rather than requiring them to take it."

Once the COVID-19 vaccine becomes widely available, employers should consider their options and policies carefully, keeping in mind the following:

  • Realize if an employee objects to the vaccine for religious reasons, the employer will need to explore what reasonable accommodations it can provide, absent undue hardship.
  • Similarly, if an employee declines vaccination due to a medical condition or disability, the employer must engage in an interactive process with the employee to identify reasonable accommodations, if any.
  • Discuss policy with applicable insurance carrier before implementation to address coverage in the event that an employee becomes ill.
  • Explore options to increase liability protections such as a waiver or release in case a vaccinated employee has an adverse reaction, and what consideration will support the waiver or the release.
  • Consider whether the employer will cover any costs connected to administering vaccination and how this will integrate with employer-provided health plans.
  • Evaluate whether to provide additional paid leave to employees who receive the vaccine and become ill or need days off from work to recover.
  • Review and update job descriptions to include essential functions that may relate to COVID-19 risk, such as travel requirements, customer or patient interaction, and close contact with other employees.
  • For unionized workplaces, consider whether a mandatory vaccination policy will be a mandatory subject of bargaining.
  • Develop a vaccination policy and procedure for requesting accommodation for religious or medical reasons.
© 2022 Varnum LLPNational Law Review, Volume X, Number 351
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About this Author

David E. Khorey, Labor Employment Attorney, Varnum, Workplace Confidentiality Matters Lawyer
Partner

Dave’s “client-centered” practice involves a variety of labor and employment issues. He provides practical and confidential ongoing advice and consulting on a number of sensitive and complex labor and employment matters, from problem employee situations to multi-facility collective bargaining negotiations. His representative clients include diverse industries (such as automotive, printing, transportation and hospitals) throughout the nation.  

Dave has also served as chair of the firm.

Honors & Recognitions...

616-336-6618
Maureen Rouse-Ayoub Labor Employment Attorney
Counsel

Maureen represents clients in all areas of labor and employment. She advises clients on labor management relations including union election proceedings, collective bargaining and contract enforcement in arbitration and before the National Labor Relations Board. Maureen defends employment-related claims including discrimination, sexual harassment, wrongful discharge, Whistleblowers' and Fair Labor Standards Act violations in federal and state courts, administrative proceedings and arbitration hearings. She counsels clients on drafting, implementation and enforcement of workplace policies....

248-567-7807
Stephanie R. Setterington, labor and employment attorney, Varnum
Partner

Stephanie advises employers on a wide variety of labor and employment matters, with an emphasis on employment litigation defense, and the identification and development of best practices in the area of human resources. She has worked extensively as labor and employment counsel for publicly-traded and privately-held companies that vary from single-site businesses to multi-state or global entities. She works with each client to ensure compliance with labor and employment-related legal requirements, develop effective human resource operations, and achieve the successful...

616/336-6466
Ashleigh E. Draft Associate Grand Rapids Labor & Employment
Associate

Ashleigh is an associate attorney currently working with the labor and employment group. She also works with higher education clients and provides support on a variety of litigation matters.

Ashleigh’s experience includes serving as a legal extern for the Michigan Court of Appeals Research Division. She also clerked for Michigan Appeals Court Judge Jane Beckering. Prior to law school, Ashleigh served organizations in the higher education and nonprofit sectors in various development and communications roles. 

616-336-6627
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