By John Carrigan

Law360 (December 14, 2020, 9:37 AM EST )

John Carrigan

On Dec. 11, the U.S. Food and Drug Administration granted drugmaker Pfizer Inc. and its partner BioNTech an emergency use authorization for their COVID-19 vaccine, following an eight-hour public hearing held on Dec. 10.

A second hearing, to review the emergency use authorization application submitted by drug maker Moderna Inc., is set for Dec. 17.

Americans will start receiving initial shots of the Pfizer vaccine this week, and, if all goes as anticipated, first doses of Moderna's vaccine may also be available by late December.

But employers looking to a vaccine as a way to keep their workforce and customers safe may face an uphill battle.

According to a Pew Research Center survey conducted in mid-September — admittedly, prior to the announcements of positive early results from the Pfizer and Moderna clinical trials — just 51% of U.S. adults said they would either probably or definitely get a COVID-19 vaccine if it were available to them today.

Subject to some exceptions, primarily objections based on medical or religious grounds — employees objecting based on a generalized antivax stance, or distrust about a certain vaccine, would be on shakier ground — employers generally may implement mandatory vaccination programs.

And such vaccination programs have long been common in the health care field with respect to illnesses like measles and the flu.

But while a policy requiring employees to take a coronavirus vaccine likely would be enforceable in most cases, it may not be appropriate or advisable for every workplace.

Many employers, whether to avoid internal conflict, possible workers' compensation claims arising out of alleged vaccine side effects or potential bad publicity, may wish to take a more cautious approach — encouraging vaccination, but not requiring it.

But even without a hard mandate, employers taking action to drive up their employee vaccination rates face numerous potential legal risks.

In hopes of avoiding litigation arising out of a voluntary vaccination program, employers might consider the following strategies:

Ensuring Low or No-Cost Vaccine Access

The federal government has already contracted to procure millions of vaccinations, and has said that all vaccine doses purchased with U.S. taxpayer money will be available to the American people at no cost.

But employers should not assume this means vaccinations will simply be free to all employees.

At least some vaccination providers are expected to charge an administrative fee for the cost of injecting patients, a cost providers may seek to have reimbursed by the patient's insurance company or, for uninsured patients, by a provider-relief fund from the federal Health Resources and Services Administration.

To avoid confusion, and potential claims from employees who might end up with an unexpected bill, employers may want to reach out to their health insurance provider to discuss if and how vaccination — and any related administrative costs — will be covered, and whether covered employees will be asked to bear any portion of the cost.

Also, given the federal government's messaging about vaccine availability for the American people, employers mindful of potential national origin discrimination claims may also want to seek clarity on vaccination availability and costs for employees who are not U.S. citizens.

Depending on what they hear from their insurers, employers may elect to cover some or all of their insured employees' costs associated with vaccination.

Employers should also consider anticipated costs related to any employees or key contractors not covered under the employer's health plan.

Coordinated Education Campaigns

Many large employers already run annual campaigns encouraging employees to get flu shots every fall.

And many of the strategies proven to be effective with such drives — for instance, multichannel communications including text messages, email messages and presentations, as well as a visible buy in from senior management — are also expected to deliver positive results when it comes to a coronavirus vaccine.

Employers can already anticipate many of the most common objections they might hear from employees — for instance, a perception that the approval process may have been politicized or rushed, or concerns about an adverse reaction to the vaccine itself — and they should be prepared to address them when the time comes. But employers should try to avoid the appearance of politicizing a public health message.

The most successful employee-education efforts are likely to frame vaccines as being the best path back to something more like normal life, but without scolding employees who may be wary of taking a vaccine they may see as unproven.

As to those employees who come out in vocal opposition of a vaccine, employers should tread carefully and document any concerns over employee behavior or performance to avoid potential whistleblower and retaliation claims.

And, even in nonunion environments, employers should recognize their employees' rights to engage in concerted activities under the National Labor Relations Act, such as circulating petitions objecting to the employer's vaccination program.

Understand Timing Thresholds (and Potential Privacy Concerns)

In making any plans for a companywide vaccination program, employers should recognize that their workforce will likely not all become eligible to be vaccinated at the same time, and that there may be a lag of six months or more between when the first and last employees can get their shots.

Federal guidance regarding the vaccine rollout has not been finalized, and different states will make their own determinations as to which populations will first be eligible to receive the vaccine.

Nevertheless, it is widely expected the vaccines will be released in a phased approach, first being made available to only a relatively small portion of the population, with health care workers likely to become among the first to receive priority.

After that, it becomes more complicated, as a vaccine is expected to be made available to various sectors of the population based on factors such as occupation, age or whether the individual suffers from one or more medical conditions associated with increased coronavirus risk.

It is not yet known just when the vaccine will be available to members of the public who don't fall into a higher priority group, though government officials have suggested that may not be until the spring or summer of 2021.

Depending on what rollout criteria are in place in a particular jurisdiction, employee privacy rights may come in to play with respect to the timing of an individual's vaccination.

For example, if, in a particular state, the vaccine is made available to individuals who suffer from certain enumerated health conditions four months earlier than the general public, evidence of the date that a particular employee is vaccinated could inadvertently reveal private health status information which would have otherwise been unknown to her employer.

In hopes of avoiding invasion of privacy claims, employers might consider various strategies, such as limiting the access to such employees' vaccination status or asking employees to sign a waiver allowing their vaccination status to be shared with others.

Offer Stipends or Other Benefits to Vaccinated Employees

A departmentwide pizza party for the group with the highest vaccination rate might not hold quite the same appeal as in years past, but employers may want to get creative with potential incentives to employees who elect to be vaccinated.

This might include tangible benefits like gift cards, or other inducements like additional vacation time or flexible hours. While some economists have suggested that the simplest way to encourage vaccinations might be to simply offer cash payments, employers considering this option should consult with counsel to assess the proper treatment of such payments for tax purposes.

Another benefit to consider might be offering employees paid time off specifically to get the vaccine.

While some employers have offered employees a few hours of personal time off in past years to get a flu vaccine, employers might consider offering more here — early reports suggest that coronavirus vaccines may be more painful to take than a regular flu shot, and may have short-term side effects, such as headaches or flu-like symptoms, that could cause some vaccinated employees to miss work.

Require Vaccination to Work On-Site

Once a vaccine is available, some employers may consider requiring proof of vaccination status for employees who wish to return to the office, while requiring unvaccinated employees to continue working remotely. While there may be safety benefits to such a strategy, it could open an employer up to failure to accommodate claims from employees who are not being vaccinated for reasons associated with their religion or disability.

On-Site Vaccination Clinics

In past years, some employers may have run on-site mobile flu vaccination clinics in the company parking lot. In theory, this same approach could be effective in encouraging employees to take a coronavirus vaccine.

But the logistics of such an approach are likely to be more complicated with a coronavirus vaccine, in part because several of the leading vaccine candidates (including Pfizer's and Moderna's) must be stored at very low temperatures which are beyond the capacity of most freezers.

Employers considering working with an on-site clinic should reach out well in advance to determine whether this approach might be feasible for their workplace, and before retaining such a clinic, should carefully review any contract language to ensure appropriate controls will be in place and staff have been adequately trained.

Employers may also want to determine whether any indemnification provision would insulate them from liability claims based on any improperly administered injection or other errors by the clinic.

Early Engagement With Labor Unions

Any mandatory vaccination policy would likely constitute a required subject of collective bargaining under the National Labor Relations Act, as would other vaccine-related policy changes which would impact employees' terms and conditions of employment.

But even absent a possible bargaining obligation, management might benefit from early communications with their union counterparts or labor/management committee to assess any concerns and discuss potential joint communications.

Set Aside Administrative Resources in Advance

Most of the leading vaccine candidates (including both Pfizer's and Moderna's) require two separate shots, to be taken several weeks apart from each other. Some people will get the first shot, but forget the second — others may mistakenly take a first shot of one vaccine, and a second shot of another.

To avoid these, and other potentially preventable concerns, employers may want to go ahead and dedicate administrative staff and resources specifically to managing the logistics of a vaccination campaign.

The employer might also want to designate a committee to review laws and guidance at the state, federal and local level addressing vaccine issues, and to prepare appropriate notices and revised polices — for instance, revising quarantine protocols to delineate separate rules for employees who have and have not been vaccinated — as needed.

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John Carrigan Jr. is a member at Cozen O'Connor.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

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