As COVID-19 cases continue to mount and the virus continues to push public health systems to their breaking points, perhaps no community has been hit harder than our elders residing in long-term care facilities. As of January 13, 2021, Neshaminy Manor—the largest nursing home in Bucks County, Pennsylvania—has seen 218 residents test positive, 85 of whom have died from the virus. Through contact tracing, administrators believe the virus was brought into the home by infected employees despite the nursing home’s best efforts to minimize risk.
While 94% of residents received their first vaccination shot by way of a COVID-19 vaccination drive recently conducted by the nursing home, only about one-half of the home’s employees elected to receive the vaccine. Calling the lack of employee participation “unacceptable,” Neshaminy Manor levied an ultimatum: get the first dose by February 4th or face termination.
As I discussed in an earlier blog, healthcare-employer immunization mandates, like the one imposed by Neshaminy Manor, are more likely to be upheld by the courts as legally valid and enforceable so long as the employer: (1) provides the appropriate carve-outs as required under the Americans with Disabilities Act and Title VII of the Civil Rights Act; and (2) accounts for other legal and practical considerations, like ensuring the vaccine mandate is job-related, consistent with business necessity and implemented uniformly. Because Neshaminy Manor and other nursing home employees are tasked with caring for medically vulnerable senior citizens, the employer’s interests in ensuring the safety and well-being of their residents is directly job-related and necessary for the operation of the facility. Further, the Equal Employment Opportunity Commission—the federal agency tasked with enforcing federal anti-discrimination law in workplaces—recently issued guidance that seems to give greater discretion and latitude to employers that decide to implement COVID-19 vaccination policies, at least relative to prior vaccines and immunizations.
But, while an employer’s vaccine mandate might be upheld by a court-of-law, employers nevertheless should exercise caution before crafting and implementing their own vaccine mandates. Faced with an ultimatum like the one imposed by Neshaminy Manor, an employee could challenge the policy in court and seek monetary damages (back pay, if any, and legal fees) as well as declaratory relief (a declaration by the court that the employer’s vaccine mandate is unenforceable as a matter of law). The employee may not win his or her case, but litigation is time consuming, often unpredictable, and expensive. Further, a lawsuit can bring disrepute to the employer and cause harm to the employer’s name, brand, reputation and goodwill, which might not be so easily reduced to a dollar amount. Similarly, employers may be faced with employee backlash and employee morale may decline.
Employers should be mindful of other relevant considerations. For example, if the employer’s workforce is unionized, the union may claim a violation of the collective bargaining agreement or, if it’s within their rights, they can strike against the mandate. Furthermore, beyond the healthcare, nursing home or school settings (where immunization mandates historically have been more commonly implemented and upheld), it remains to be seen whether our courts – and which jurisdictions – will uphold and enforce private employer COVID-19 mandates. As I have expressed to many of my clients, no employer wants to be the litmus test for determining the legality of an employer COVID-19 vaccine mandate. Thus, despite the EEOC’s recently issued guidance, which suggests any private employer might be within its rights to require employee vaccination, employers should weigh all of their options and fully consider all applicable circumstances before throwing down the gauntlet for their employees.
As an alternative to imposing a mandate, employers should consider educating their workforces and encouraging vaccines. Indeed, employers might attempt to determine what percentage of their workforce favors vaccination and will seek it voluntarily, as there might not be any need for an employer mandate (especially if the employer’s numbers near herd immunity). Employers also may incentivize employee participation. For example, employers may offer paid time-off after an employee receives both doses (regardless of whether the employee experiences side effects from the vaccine). Employers also can offer gift-cards that intersect with other employee health and wellness initiatives or can provide a small stipend to their employees. These incentives might motivate a workforce to voluntarily seek vaccination. Of course, to avoid any claims of disparate treatment, employers must offer the same or similar incentives to those employees who cannot receive the vaccine due to a disability or sincerely held religious belief.
The point is this: before requiring employee vaccination, employers should leave no stone unturned in weighing their options, considering alternatives, and accounting for all practical, legal, and public relations ramifications. Additionally, employers should recognize that employee vaccination, whether voluntary or required, is not a substitute for other prophylactic measures implemented to mitigate the spread of COVID-19, and policies requiring the wearing of masks, social distancing, etc., should not be abandoned anytime soon.