Pub. 2 2020 Issue 6

As in the case of the ADA, Title VII also allows employers to deny an employee’s request for an exemption to a mandatory vaccination if the employer can show an “undue hardship” by allowing the employee to forgo the vaccine. Again, this would hinge on the individual circumstances applicable to each case but would largely depend on the employer’s ability to provide alternative protections for the employee, the rest of its workforce, and, where necessary, members of the general public. While the EEOC’s H1N1 guidance provides some insight into how the EEOC is likely to view COVID-19 vaccine mandates in the workplace, there are still open questions. Occupational Safety &Health Administration (OSHA) While OSHA has also not yet provided specif ic COVID-19 vaccination guidance, its longstanding position regarding the flu and other vaccines indicates support for employer mandates so long as employees are “properly informed of the benefits of vaccinations.” The agency has caveated this by clarifying that an employee who refuses a vaccine due to a medical condition that the employee reasonably believes would cause serious illness or death may still be protected by Section 11(c) of the OSH Act, which governs whistleblower claims based on workplace health and safety. Furthermore, it is worth noting that in its interim guidance issued inMay 2020, OSHAhad encouraged its own investigators to obtain the COVID-19 vaccination as soon as it becomes available. There is likewise widespread speculation that OSHAmay 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 safetymeasure. As with the EEOC, additional guidance is expected to shed light on the direction of OSHA’s enforcement position on this topic. 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 f lipside, 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’ compensation serves as the exclusivity remedy for employees who sustain physical injuries within the course and scope of employment. 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- sponsoredCOVID-19 vaccine, these same lawsmay not preclude tort claims against third-party entities, such as the vaccinemanufacturer. 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 Abbey Moland is a partner in the Labor and Employment Group at McGrath North and sits on the Board of Directors of the f irm. Her practice focuses on all aspects of employment and labor law, inc luding wage and hour, employment discrimination litigation, developing employment policies, and col l ec t ive bargaining. She works c los e ly wi th HR managers, in-house counsel, and business leaders in assisting their businesses with COVID-19 issues and in developing long-term strategies and best practices to reduce business and legal risks. She can be reached at (402) 633-9566 or amoland@mcgrathnorth.com. 27 nebraska society of cpas W W W . N E S C P A . O R G should review any existing labor agreements for language that precludes or permits such amandatory vaccination scheme. Second, non-union employers must also be mindful of how implementing a vaccine requirement 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, there are 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 under the EUA and beyond, employers may want to consider promoting rather than requiring a vaccine as a condition of employment just as they would a f lu vaccine. In other words, an employee would be limited to pursuing workers’ compensation benefits and cannot pursue tort claims against the employer absent a showing of willful or more serious conduct. t