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Covid-19 Vaccine Portends Potential Headaches for Employers

Human resources departments and employers holding out hope for a coronavirus vaccine will have to navigate issues raised by skeptical employees.

Covid world 5352923 640A vaccine that allows companies to safely bring back workers without the fear of further spread of infection would be welcome by many, but questions remain on how receptive employees will be and if employers can mandate staff to vaccinate.

Legally, employers are within their rights to require employees to take a coronavirus vaccine, Compliance Week reports reports. In the healthcare industry, for example, hospitals and nursing homes have long required all their employees to be vaccinated. But there are still things for employers to be mindful about, says Barry Hartstein, co-chair of the Equal Employment Opportunity & Diversity Practice Group at employment law firm Littler Mendelson.

“Until we know more about a vaccine’s effectiveness, how frequently someone has to take it, and any potential side effects, we’re recommending that employers wait and see,” he said.

Employers may not have to face these questions until the middle of next year at the earliest. And even then, requiring employees to be vaccinated should a vaccine be developed may not be feasible if there is no widespread availability. “We’re still waiting for a vaccine to be released,” says Rob Wilson, president of Employco, a human resources outsourcing firm. “I think it’s a decision people will have to make on their own.”

Hartstein suggests a better course of action (if a safe vaccine is developed and easily attainable) is to strongly recommend employees take one and not issue a mandate. That’s because such a mandate can open employers to liability risk if an employee falls ill after taking a vaccine.

The politicization of vaccines this year adds another level of complexity for employers who want to go the mandate route, The Dallas Morning News reports reports. Employers outside the healthcare industry need to consider how a vaccine mandate may be seen as hostile to employees with certain health issues, religious beliefs and disabilities.

“Employers are not trying to make a political statement, but they may be accused of it,” said L.J. Tan, chief strategy officer at the Immunization Action Coalition in St. Paul, Minn. “There’s a lot of autonomy and independence in the U.S., and that creates constant tension with the altruistic goal of trying to protect yourself and those around you.”

But Harry D. Jones, an employment lawyer for Littler Mendelson in Dallas, said employers will face pressure to require vaccinations if the virus continues to spread. “Employers will say, ‘We don’t want to make this mandatory,’” Jones said. “The CEOs and heads of HR (human resources) don’t want another drama or contentious fight. But they want to stop the quarantines and disruptions.”

Jones added that if a safe and effective vaccine is available, employers are “going to become frustrated and tired with just asking.”

 “Companies think if they just ask nicely and tell the upside, employees will do it,” he said. “But there’s going to be some holdouts.”

Employers should turn to the Equal Employment Opportunity Commission’s guidance on the flu vaccine since the EEOC, as of last month, had not put out guidance on a Covid-19 vaccine, Arielle Eisenberg, a lawyer with Miami-based Cozen O’Connor, previously told the Society For Human Resource Management.

Over one-third of respondents to a Gallup poll released August 7 said they would not take a vaccine if the Food and Drug Administration had given its blessing for a free Covid-19 vaccine. "This is likely for a myriad of reasons, but employers should understand who their workers are and how they are likely to respond to mandates," says Alissa Kranz, an attorney with Lieser Skaff Alexander in Tampa, Fla. "Employees may decide that they no longer wish to work for an employer if they are requiring vaccines. If they do reluctantly decide to receive the vaccine, there also may be distrust between the employer and the employees."

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