Pub 9 2021 Issue 1

the OSH Act, which governs whistleblower claims based on workplace health and safety. Furthermore, it is worth noting that in its interim guidance issued in May of 2020, OSHA had encouraged its own investigators to obtain the COVID-19 vaccination as soon as it becomes available. There is likewise widespread speculation that OSHA may look to apply the General Duty Clause, OSHA’s general citation standard, to issue citations to employers who fail to offer the COVID-19 vaccination to its workforce as an enhanced safety measure. As with the EEOC, addi- tional guidance is expected to shed light on the direction of OSHA’s enforcement position on this topic. 3. Workers’ Compensation. On a similar note, what happens if an employer recommends or requires a COVID-19 vaccine for its employees and the employee is injured due to the vaccine? Most likely, state workers’ compensation coverage would come into play to cover any physical injury, whether due to a vaccine side effect or other physical injury to the employee caused by the vaccine. This would generally be true in the case where an employer recommends, requires, pays for, or administers the COVID-19 vaccine at its worksite. On the flipside, workers’ compensation coverage would likely not apply in a scenario where an employee obtains a COVID-19 vaccine without the recommendation, mandate or sponsorship from the employer. Typically, subject to some state-specific exceptions, workers’ com- pensation serves as the exclusive remedy for employees who sustain physical injuries within the course and scope of employment. In other words, an employee would be limited to pursuing workers’ compen- sation benefits and cannot pursue tort claims against the employer absent a showing of willful or more serious conduct. While workers’ compensation laws may apply to shield employers from tort claims (i.e. personal-injury type claims) brought by employees who sustain physical injuries as a result of an employer-sponsored COVID-19 vaccine, these same laws may not preclude tort claims against third party entities, such as the vaccine manufacturer 4. National Labor Relations Board (NLRB). Finally, there are labor considerations for both union and non-union employers in mandating a COVID-19 vaccine. For union employers, requiring a COVID-19 vaccine may be considered a mandatory subject of bargaining triggering an employer’s duty to bargain prior to implementing such a requirement. Employers should review any existing labor agreements for language which precludes or permits such a mandatory vaccination scheme. Second, non-union employ- ers must also be mindful of how implementing a vaccine require- ment could implicate Section 7 of the National Labor Relations Act (NLRA), which provides employees the right to engage in “concerted activities” for the purpose of “mutual aid and protection.” Practically speaking, employees who join together to speak out for or against a mandatory vaccine requirement, who collectively create outside social media postings or other organized interoffice communications regarding the requirement, or simply discuss the employer-imposed requirement would be protected by federal labor law and generally, cannot be subject to discipline or termination as a result of this conduct. Notwithstanding, even if employees band together in concerted activity under the NLRA, and cannot be disciplined for that concerted activity, they could still be disciplined for refusing to take the vaccine, or even permanently replaced if they choose to go out on a work stoppage. While the current legal landscape suggests employers, especially those in certain high-essential industries, may be able to require employees to obtain a COVID-19 vaccine, the legal landscape changes almost daily, and there are many open questions, potential public relations pitfalls, and employee morale issues with doing so. Until there is more guidance from the federal, state, and local level on this topic, and more widespread use and availability of the vaccine beyond the healthcare industry, employers may want to consider promoting rather than requiring a vaccine as a condition of employment just as they would a flu vaccine. X Abbey Moland is an attorney at McGrath North and counsels Fortune 500, mid-size and start-up businesses, colleges and universities, and non-profits on a wide range of labor and employment matters. Her practice spans across the country in areas including wage and hour compliance, workforce reduc- tions, employee leaves of absence, FMLA and disability accommodations, workplace investigations, hiring practices, disciplinary actions and employee terminations, immigration and workforce authorization, management and employee training on workplace issues, policy formation, union organiza- tion, non-compete issues, OSHA investigations, and employee class-action litigation. She is also experienced in defending employment-related litigation and providing day-to-day counseling to avoid unlawful employment practices. Moland can be reached at (402) 633-9566 or amoland@mcgrathnorth.com . V Continued from page 27 Most likely, state workers’ compensation coverage would come into play to cover any physical injury, whether due to a vaccine side effect or other physical injury to the employee caused by the vaccine. MINING 28