Since the beginning of the pandemic, organizations have managed to overhaul the way their operations were conducted. They have implemented changes required by federal, state, and local health guidelines to focus on employees and customer safety. The Food and Drug Administration (FDA) has approved several vaccines, including Pfizer’s and Moderna, with distribution efforts seemingly problematic to the general public. However, this light of hope appears to excite employers at the prospect of a full return to work and “back to the way things were.” Unfortunately, we have a long road ahead before an employer can consider that type of thinking. There are several implications, including whether you can require an employee to take the vaccine with legal employment-related liability.
First, employees might have a right to refuse to get a vaccine for religious reasons or a disability, both of which are protected in some states. Federally, the Americans with Disabilities Act (ADA) protects those with disabilities and religious exclusions are protected under Title VII of the Civil Rights Act of 1964 (Title VII). The ADA and Title VII apply to organizations with fifteen or more employees. Moreover, in California, the Fair Employment Housing Act (which applies to 5 or more employees) has extensive protections and definitions for qualified disabled applicants. Making it more difficult to fire someone who refuses to take the vaccine on those grounds. However, where religion and disability do not apply, it is not very clear. Legal experts expect that employees will have an uphill battle to fight a vaccine mandate required by employers in these situations.
To further complicate things, organizations that do not require employees to get vaccinated may also face liability exposure. For example, your organization decides not to require employees to get vaccinated. An employee gets sick and then spreads it to other employees or clients. Your organization may face liability exposure, such as workers’ compensation and general liability.
We recommend discussing with your employment attorney about your options when the vaccine is available to the public. Discuss what steps your organization needs to take to get your operations back to any semblance of normalcy.
As a reminder, Employment Law Practice Liability Insurance (EPLI) provides coverage to organizations against claims made by employees for employment-related lawsuits, such as discrimination, wrongful termination, and harassment. It is critical to review your EPLI policy with your employment attorney to identify any gaps in coverage.
Let us know if you have any questions or concerns regarding EPLI or would like us to provide a quote. We are here to help!
*this article is intended to be used for informational purposes only and not to be construed as legal advice.