The COVID-19 Vaccination: Duty of Care and Liability Issues for Employers to Consider
The consequences of COVID-19 have been felt at every level of society in the past year. But employers have been dealing with unique complications throughout the pandemic. Now that a vaccine has become available, additional considerations have come into play for employers regarding duty of care and liability.
As an employer, you may be wondering what’s best for your employees, as well as how to protect yourself legally in this unfamiliar territory. This article will familiarize you with the issues around employee vaccinations and duty of care. It will also provide some guidance and resources you may find useful.
Employer FAQs About Duty of Care and COVID Vaccination
Here are some FAQs employers have been asking, as well as some thoughts on these issues from legal, medical, and insurance experts.
Is it legal for me to require my employees to get vaccinated before returning to the office?
Yes. The Equal Employment Opportunity Commission (EEOC) stated on December 16, 2020 that employers may require their employees to be vaccinated prior to returning to the office.
If you’d rather not put a strict vaccination mandate on your employees, however, there are other options, such as employee incentive programs.
Are there any exemptions from the EEOC’s guidance on mandatory vaccinations?
There are two primary exemptions to a vaccine mandate for employees.
- The first category is employees who object to being vaccinated as a result of sincerely held spiritual or religious beliefs.
- The second group is employees who have an illness or medical condition which puts them at heightened risk of an adverse reaction to the vaccine.
- If one or more of my employees object to being vaccinated for religious or medical condition reasons, what can I do?
Under the Americans With Disabilities Act, part of your duty of care obligation involves providing a reasonable accommodation to such employees.
It’s important to note that a “reasonable accommodation” request from an employee may only be denied if fulfilling it constitutes an undue hardship to the business. “Be aware that fear, discomfort, or general (non-religious) opposition to vaccines will not qualify an employee for an exception,” said Crane.
For employees who fall into the category of “general discomfort,” it may help them to know that the vaccine is quite safe.
As an employer, you need to strike a balance between being accommodating to genuinely voiced objections while also maintaining reasonable standards for your workforce.
Share of people by country who received at least one dose of COVID-19 vaccine. Source: Our World in Data
Do I have to pay for the costs associated with vaccinating my employees?
Yes. Under the CARES Act, employers are responsible for covering 100% of the costs associated with vaccinating their employees. However, the federal government is providing vaccines free of charge to U.S. citizens, so costs arising from employee vaccinations should be minimal, if they arise at all.
Another point to be mindful of here: the vaccine may not remain effective.
It’s worth at least being aware of the possibility that two doses of the vaccine may not permanently protect your employees or resolve the workplace difficulties arising from COVID-19. So, if you do happen to incur costs of any kind while vaccinating your employees, you may wish to factor those considerations into your budget for a second round of shots going forward.
Are employment related lawsuits becoming more frequent?
Yes. According to the COVID-19 litigation tracker by Fisher Phillips law firm, there have been 1,717 virus- related lawsuits filed by employees against employers in the United States since January 30, 2020. That number is expected to continue climbing in the months to come.
Tips for Returning to Work and Minimizing Liability
Given the number of lawsuits with COVID-19 and employment at their root, you’re probably wondering what steps you can take to be as safe as possible from a legal standpoint when your employees get vaccinated and return to work.
Here are a few quick tips you may find useful throughout the process.
Maintain strict employee confidentiality
Employee confidentiality is of the highest importance, especially in these unusual times. Employees who object to being vaccinated on medical or religious grounds may very well confide personal information to you while stating their case.
Any infringement of employee confidentiality carries the strong likelihood of a lawsuit.
Consider any union bargaining agreements you have in place, if applicable
If your workers are unionized, be sure to carefully review the documentation for any relevant bargaining agreements.
As you’d expect, breaching a legally binding contract with your union—even unknowingly—could very well result in a costly and complex suit being brought against you.
Review workers compensation laws for your state, as well as your employer insurance policy
Bear in mind that any adverse physical reaction arising from an employer- mandated vaccination could result in a workers compensation claim being filed. Be sure to read applicable workers compensation laws and review your employer insurance policy thoroughly.
A few points about adverse reactions arising from the COVID-19 vaccine are also worth noting
Overall, even though there is a minimal degree of risk, the benefits of vaccinating your employees most likely outweigh the costs.
Handling Employer Liability Around the Vaccine
Employers have faced unique challenges since the outbreak of COVID-19, and that’s especially true now that a vaccine has entered the picture.
Have Any Questions or Concerns About How to Protect Your Business?
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Clements Worldwide can keep you protected from an employee lawsuit or an interruption in your business with solutions ranging from Combined Liability Coverage, Business Interruption Insurance, Group Health, and other international business insurance solutions tailored to your unique needs.