Vaccines and the Workplace: Are Employers Inoculated from Liability?
By Lori Welty, Esq., Absence Management Senior Compliance Attorney, FINEOS Corporation
While no one could have predicted the changes we would see after the presence of a mysterious illness was announced by the World Health Organization on Jan. 9, 2020, the arena of vaccine development — and how it affects employer policies — is likely one of the most significant. Six months after the January 2020 announcement, COVID-19 vaccine manufacturers declared promising results from clinical trials. By December 2020, the Food and Drug Administration (FDA) approved an emergency use authorization for vaccination. And by August 2021, the FDA granted full authorization for the Pfizer/BioNTech vaccine for individuals aged 16 and older.
From an employer perspective, things heated up on Nov. 5, 2021, when the Occupational Safety and Health Administration (OHSA) issued an emergency temporary standard (ETS) requiring companies with more than 100 employees to mandate the vaccine (in most cases), masks, and testing.1 On Jan. 13, 2022, the U.S. Supreme Court granted emergency relief by staying implementation and enforcement of the ETS, and OSHA then withdrew the ETS on Jan. 26. It did not, however, withdraw it as a proposed rule and might focus on finalizing a permanent COVID-19 healthcare standard, which could include those requirements. OSHA strongly urges employers to encourage vaccination of workers, despite its withdrawal of the ETS.2
As it stands, employers can make their own determinations about requiring vaccinations though they must abide by the general duty clause in the Occupational Safety and Health Act3 to provide a work environment that is “free from recognized hazards.” And whether they are required to or choose to enact a mandatory vaccination policy, some will seek exceptions.
Accommodation for a Disability
The ETS as originally enacted required an employer’s vaccine policy to have an exemption for employees who need reasonable accommodations for disabilities or sincerely held religious beliefs; if OSHA adopts a vaccine mandate again, it would likely contain the same provision.4
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