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Can Insurance-Related Firms Compel Employees to Get COVID-19 Vaccination?

2020-12-28 06:00:49
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The long-awaited and highly anticipated COVID-19 vaccine is here. The first to arrive on site, from Pfizer-BioNTech, received emergency use clearance from the Food and Drug Administration a few days ago. On its heels, Moderna's version got the official nod.

Undoubtedly, this is great news for a nation fighting the grasp of such a highly contagious and potentially deadly disease. Still, the introduction of these immunizations raises several questions – within the insurance industry and otherwise – regarding distribution plans, effectiveness, and the timing of widespread availability.

Also in the minds of insurance professionals going beyond & # 39; should I or shouldn't & # 39; is whether they can force their employees to get vaccinated against the new corona virus.

The short answer is yes

We are all entering new territory regarding COVID-19 vaccinations. In the aftermath of Operation Warp Speed, the Pfizer and Moderna products have an unknown track record of effectiveness, and the magnitude of their side effects is not fully understood, leading some to be a little hesitant about the injection. Nevertheless, from a legal point of view, there is little to prevent a private employer in the insurance world from imposing a vaccination obligation on his employees. Indeed, vaccine skeptics and those on the fence when it comes to Pfizer and Moderna's offerings may not be happy to learn that in most cases, companies can require their employees to receive COVID-19 vaccinations once they are available as a condition for new or continued employment.

Whether mandatory vaccination should be introduced in the insurance-related workplace is a very different question.

To be clear, this discussion only applies to private companies (both within and outside the insurance industry), and not to federal, state, and local government employers who are subject to constitutional restrictions that affect their ability to meet COVID vaccination requirements. 19 to implement.

Basis of a COVID-19 vaccination mandate

For years, employers have been legally empowered to require their employees to receive an annual flu vaccine in order to continue working. In keeping with this view, the US Occupational Safety and Health Administration has long held the view that while employers are not forced to force employees to get vaccinated, they can. However, OSHA has imposed a number of restrictions on such an employer mandate: (1) when it can be reasonably believed that an employee has a medical condition that could pose a real risk of serious illness or death in the event of vaccination, and (2) if the employee has private religious beliefs that are inconsistent with taking vaccines.

When it comes to the recently approved COVID-19 vaccines, the federal government's stance seems largely unchanged. In fact, the U.S. Equal Employment Opportunity Commission this month updated its COVID-19 guideline, which explains that employers can require employees to get a COVID-19 vaccine (once they become eligible) to return to or to stay at work. This is true unless employees who are against immunization demonstrate that a medical disability or genuine religious belief exempts them from an obligation to vaccinate, in which case reasonable accommodations should be made for them, if possible and as explained below.

Waivers and Reasonable Adjustments

Employees may refuse to be vaccinated if they suffer from medical conditions covered by the Americans with Disabilities Act or if they hold closely held religious beliefs under Title VII of the Civil Rights Act. Given the serious health and economic impact COVID-19 has had here in the US, the bar is quite high for employees who want to trigger either exception to their employer's mandatory vaccination policy. Nevertheless, it is the job of employers to notify employees of their rights to apply for a vaccine exemption under federal, state, or local law.

If an employee declines a COVID-19 vaccination due to a medical disability considered in the ADA, the employer must provide reasonable accommodation to that employer in lieu of the termination. Such accommodation should not cause unnecessary hardship to the employer (read: significant difficulty or expense) and includes the option for the deviant employee to work in a different location if possible. Certainly, telecommuting is not possible in certain circumstances – for example, jobs in retail and hospitality. In any case, the ADA remains a deterrent to COVID-19's vaccination obligations, and the law requires such guidelines to be work-related, consistent with the business need, and no more intrusive than necessary.

Likewise, and under the EEOC and Title VII, reasonable accommodation must be made for employees whose sincere religious beliefs, practices, or adherence prevent them from using the COVID-19 vaccine. Again, however, an employer would not be required to provide reasonable accommodation if doing so creates undue hardship, requiring even less display under Title VII.

Apart from the exceptions, the EEOC has made it clear that if an unvaccinated worker poses a threat to the health and safety of other workers or, more generally, the workplace, and if that threat cannot be eliminated through reasonable accommodation, the employer can exclude the non-vaccinated employee from the workforce.

Do you have to set up a vaccination mandate?

Beyond the legality issue, employers in the insurance industry face a difficult decision whether or not to implement and enforce mandatory vaccination protocols. As mentioned, the COVID-19 vaccine does not have a proven track record of safety or efficacy, which means employers must anticipate a significant relapse of at least some workers who are forcibly immunized. Depending on your business and circumstances, a logical compromise may be that employees should receive vaccines on site, while dissenters can work remotely.

It is important to understand that while legal vaccine policies may lead to lawsuits brought by disaffected employees who either do not want to be vaccinated or who experience adverse reactions to vaccinations. This is just one of the potential downsides of a vaccine requirement, along with the impact such a mandate could have on employee relationships in light of the widespread individual skepticism that could create tension in the workplace. But negative consequences such as these have to be weighed against the overwhelming public health and business continuity benefits that are sure to come if and when rural workforces are immunized against COVID-19.

Finally

The EEOC, for its part, advises that best practice is to encourage employees to get COVID-19 vaccines on a voluntary basis, rather than making it mandatory. That said, every employer should do what they think is best for their business.

Be that as it may, it is widely recommended that insurance employers provide proper education regarding the COVID-19 protocol, vaccinations in general, and workers' rights to refuse a vaccine under the ADA and Title VII. Likewise, you must – and in some cases must – continue to apply safe exposure controls to prevent the spread of the novel coronavirus; provide employees with paid sick leave to reduce the pressure to report on site in case of illness; and make it easy for employees to receive vaccinations to combat COVID-19, even if they are not mandatory.

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