Pub. 2 2020-2021 Issue 2

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 reductions, 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 organization, 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 . 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Occupational Safety and Health Administration (OSHA) While OSHA has also not yet provided specific 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 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 of fer the COVID-19 vaccination to its workforce as an enhanced safety measure. As with the EEOC, additional guidance is expected to shed light on the direction of OSHA’s enforcement position on this topic. 3. Workers’ Compensation Ona similar note, what happens if anemployer recommends or requires aCOVID-19 vaccine for its employees and theemployee is injureddue to the vaccine? Most likely, state workers’ compensation coverage would come into play to cover any physical injury, whether due to a vaccine side ef fect or other physi- cal 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’ compensation 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’ compensation 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 nonunion 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. Employ- ers should review any existing labor agreements for language which precludes or permits such a mandatory vaccination scheme. Second, nonunion 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 pur- pose 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 interof fice communications regarding the requirement, or simply discuss the employ- er-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. 12 UP DATE