11-24-2020; Can U.S. Employers Require Workers to Vaccinate? And What Happens If Your Folks Refuse the Vaccine?; Kevin Boyle, JD on important new Indiana defense ruling and more

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Synopsis: Can Employers Require Workers to Vaccinate? And What Happens If Your Workers Refuse the New Vaccine?

 

Editors Comment: To my understanding, there are two ways the Great Pandemic of 2020 is going to end—“Herd Immunity” or an effective and new vaccine.

 

“Herd Immunity” is simple and sporadic—right now, 12,637,714 people have such immunity, as they got the disease and should be immune (or no longer with us—not to be rude), going forward. When enough people have the disease and recover from it they have the antibodies needed to fend off future re-infections; around 12.3M U.S. citizens should be immune. If you research the concept of herd immunity, you will note it is not a precise science we can rely on, as there are lots of unknowns about COVID-19. It also doesn’t appear to be a great idea to encourage or force people to get sick and maybe die to end a virus. Duh.

 

Ending the Great Pandemic of 2020—Vaccines are Coming!

 

To truly and more safely end the Great Pandemic, we need an effective vaccine or vaccines. Without question, a vaccine is the best scientific method to attack and block infections and re-infections on this shrinking planet. When I say that, I mean we have to have effective vaccines and the willingness to take the shots! I am signing up the day they are available and I suggest you do too.

 

It appears two groups have figured it out. Actually, one news source indicates the Chinese science community figured out the RNA string that led to the vaccine(s). This concept is considered an amazing breakthrough that may greatly advance “vaccinology” going forward.

 

Right now, Pfizer/BioNTech and Moderna have developed separate vaccines considered 95% effective in blocking COVID-19 infections. Both vaccines requires two doses and there is a “two-shot” 28-day waiting period for the vaccine to take full effect and provide needed antibody protection. Early “user reviews” indicate there are side effects you may expect for your workers who get the shots that are similar to having a “bad hangover.” These effects are transient and disappear in the majority of test subjects relatively rapidly. Safety in using either of the vaccines appears fairly clear. A third vaccine from AstraZeneca may be used in other parts of the world.

 

This is all coming by the millions of doses in December 2020—we aren’t talking months or years, this is hitting risk and employment managers very soon!!!

 

To my understanding many businesses are considering implementing mandatory vaccination policies for the coronavirus called COVID-19. If the Pfizer/BioNTech and/or Moderna vaccines provide a safe and widely accessible vaccine this should allow businesses to open their work sites and start returning to a productivity and normalcy—we could all stop looking like “bank robbers” because you might not have to wear masks, shields and gloves to perform normal work. If you don’t want mandatory vaccines, consider encouraging and educating your folks to not get sick from this malady and possibly die from it. Trust me, thousands of folks have already tested both of the major vaccines.

 

U.S. employers are caught in the odd position of having to protect your workers and customers from possibly lethal infection in your worksites as well as respecting the wishes of individual employees who may object to being required to be vaccinated in order to return to or remain at work. 

 

Please also note—if your workers get temporarily sick from a non-mandatory vaccine itself and then oddly claim their malady is “work-related,” consider putting up with some of these sorts of shenanigans for a time. Consider the public relations impact of fighting such claims. My vote is avoid a rabid and wacky media blitz about your company.

 

The issue on folks that don’t want a COVID-19 vaccine then involves the new inbound “liberal” Federal administration for both the Equal Opportunity Employment Commission regulations and guidance, as well as OSHA workplace safety rules and their guidance. Employers mulling mandatory vaccination policies need to consider:

 

  • How to decide if a vaccine policy is good for your company,

  • How you might very carefully enforce a vaccine policy,

  • The medical risks of requiring vaccines that might injure/disable or kill your workers;

  • The legal risks of mandating and enforcing a vaccine policy, and

  • Work comp/OccDisease responsibilities in administering a vaccine policy.

 

Every article I have read in my legal research indicates you have to proceed with caution. You may note our incoming President-to-be is bringing in the hyper-aggressive, business-challenging folks that were in place during the Obama administration.

 

In 2009 Pandemic guidance issued during the H1N1 influenza outbreak, the EEOC stated both the Americans with Disabilities Act and Title VII bar a U.S. employer from compelling its workers to be vaccinated for influenza regardless of their medical condition or religious beliefs — even during a pandemic. You can agree or disagree but this states how the EEOC may act moving forward. The guidance stated under the ADA, an employee with underlying medical conditions should be entitled to an exemption from mandatory vaccination (if one was requested) for medical reasons. And Title VII would protect an employee who objects due to religious beliefs against undergoing vaccination. In these cases, the employer could be required to provide accommodation for these individuals (such as working from home). If you don’t provide accommodation, you can be sued and owe the other side’s legal fees and costs.

 

Additionally, the employer would have to enter into an “interactive process” with each worker to determine whether a reasonable accommodation would enable them to perform essential job functions without compromising workplace safety. You company can be sued for not offering this process. This could include:

 

  • The use of personal protective equipment,

  • Moving their workstation to a more secluded area,

  • Temporary reassignment,

  • Working from home, or

  • Taking a leave of absence.

 

One issue which may not have any legal standing is if an employee objects to inoculation based on being an “anti-vaccinatable,” or someone who objects to vaccines believing they are inherently dangerous. In this case, depending on which state your business is located, you may or may not be able to compel someone who randomly objects to vaccines to get a shot.

 

Protecting You and Your Company

 

To mount a successful defense of a vaccination policy if sued, you need to be able to show your policy is job-related and consistent with clear business necessity. Assuming your rationale is based on facts and relate to each employee’s job description—you have to document you are enforcing the policy consistently without prejudice or favoritism. Also, you must ensure that any employee who requests accommodation due to their health status or religious beliefs does not suffer any adverse consequences. In other words, you cannot punish someone protected by the ADA or Title VII for refusing a vaccine. Also, under HIPAA, you need to protect and safeguard your employees’ medical information.

 

In my view, once a vaccine or vaccines are widely available, most employers will have the right to require your workers get it, as long as you heed my advice above about the ADA and Title VII.  If you do implement a policy requiring vaccination, consider:

 

  • Fully covering vaccine costs if they are not fully covered by your employees’ health insurance.

  • Allowing employees to opt out entirely if they have medical or religious objections.

  • In the event of a medical or religious objection, you must engage in an “interactive process” to determine whether the individual’s objections can be accommodated. Send a reply if you need help.

  • Include safeguards for keeping employees’ medical information confidential.

 

The Weird IL OC Act

 

The Illinois OD Act has an odd provision indicating a voluntary vaccination might be required to “arise out of” and occur “in the course of” employ. This is a challenging provision that we don’t feel lots of folks are aware of—I was advised about it from an in-house attorney with a great hospital chain. If you are concerned about this or the compensability of any COVID-19 claim, send a reply. I assure you I can help defend such claims.

 

I appreciate your thoughts and comments. Please post them on our award-winning blog.

 

 

Synopsis: We have an important new Indiana WC defense verdict you should know about: Gilley’s Antique Mall v. Sarver: Plaintiffs cannot add new defendants after the two year statute of limitations runs. Article and analysis by our IN WC Defense Team Leader, Kevin Boyle, J.D.

Editor’s comment: It doesn’t happen very often, but we have a newly published Indiana Court of Appeals decision on an important statute of limitations worker’s compensation issue. The case is Gilley’s Antique Mall v. Sarver, __ N.E.3d. __, 2020 WL 5808386 (Sept. 30, 2020). Plaintiff fell through a roof while he worked on a job site, sought medical treatment and then continued working on the project until it’s completion. The opinion did not discuss whether the claim was accepted or whether benefits and treatment were paid for. Eventually an Application for Adjustment of Claim was filed before two years from the date of the injury. Two years and four months after the date of injury, Plaintiff filed an Amended Application asserting claims against other defendants when it turned out the original defendant didn’t worker’s compensation insurance coverage. Ten months after that Amended Appiation, another Amended Application was filed to add another defendant. Defendants filed a motion to dismiss for failure to add them to the case within the two year limitation period set forth in IC 22-3-3-3. The Single Hearing Member granted the motion and dismissed those defendants. The Full Board reversed and allowed the late additions under 631 IAC 1-1-7 and the secondary liability provisions of the Act.

The Indiana Court of Appeals reversed the Full Board, and dismissed the Defendants. In summary, the Court held that allowing plaintiff to add new defendants extended the statute of limitations without authorization, it was erroneous and contrary to the Act. Nowhere in IC 22-3-1-3 is the Board delegated authority to increase the two year statute of limitations for filing claims.

The two year cut off has always been, and with this ruling, still is, very important to consider. Please keep this in mind with any new claims that come up after the two years from the date of injury. The two year deadline may also apply to your claims where plaintiff does not file an Application against any defendant, too. If you have any issues like these, please contact me and let’s discuss the potential defense.

Kevin can be reached at kboyle@keefe-law.com.