By Michele Gorman

Law360 (December 22, 2020, 5:33 PM EST) -- While there isn't a one-size-fits-all approach to how general counsel should handle the COVID-19 vaccine rollout, legal experts suggest most in-house teams strongly encourage — rather than mandate — immunization for their employees once the shots become more widely available.

Employers can require their workers to receive the COVID-19 vaccinations, subject to certain case-by-case exceptions for disability or religious reasons, and updated federal guidance released last week provides a blueprint for employers contemplating a mandatory policy for their staff.

Labor and employment lawyers say general counsel who are helping their companies plan for the rollout must understand that the choice of whether to require the vaccinations largely depends on the nature of their business, industry, office setup and workplace culture — and that there will be individuals who disagree with the ultimate decision, whatever it may be.

These attorneys say they've largely counseled their in-house clients to avoid a requirement — at least for now, because of the legal uncertainty and other potential drawbacks of a mandate.

"Employers would be wise to, depending on their circumstances, consider delaying a mandatory vaccination requirement until remote work is no longer feasible or until more employees get vaccinated, or until we have additional information about the vaccine and its safety and its efficacy," said Lindsey Conrad Kennedy, a labor and employment attorney with Eckert Seamans Cherin & Mellott LLC.

Most of the general public won't be able to receive a vaccine until later in the new year, even though the process began this month. Late Friday, the U.S. Food and Drug Administration signed off on the emergency use of the COVID-19 vaccine developed by Moderna Inc., a week after it gave the green light to Pfizer and BioNTech to begin distributing millions of doses of their vaccine to health care workers, who are first in line.

An advisory panel for the Centers for Disease Control and Prevention earlier this week voted to recommend the agency put certain front-line essential workers and Americans age 75 and older next in line for immunization.

Lindsay Massillon, a shareholder at Fowler White Burnett PA, said general counsel in most sectors can reduce risk by not making vaccination mandatory right now.

"If it's more of a, 'Hey, we're encouraging you to get vaccinated, and here's why we're not making it mandatory,' ... hopefully you can get employees to say, 'OK, this makes sense,' and just voluntarily they'll be happy to get vaccinated," she said.

Know How Mandates Could Clash With the Law

The idea of employer-required vaccinations isn't new — health care employers have required employees to receive flu vaccinations for years — but it remains to be seen how the courts will apply existing legal precedent to the current pandemic, Kennedy said.

Under the updated guidance issued Dec. 16, the U.S. Equal Employment Opportunity Commission laid out the legal framework under the Americans with Disabilities Act and Title VII of the Civil Rights Act — which are both enforced by the agency — for how businesses that adopt a vaccine requirement should approach situations in which a worker can't receive the shot because of an underlying disability or their religious beliefs.

Employers must first strive to provide those individuals with a reasonable accommodation or exempt them from a vaccination requirement altogether, according to the EEOC. If that's not possible, those employees can be blocked from coming to work but can't "automatically" be terminated, according to the commission's guidance, which advised employers to instead take the full range of civil rights laws into account when considering such actions.

Before moving straight to termination for those employees, Kennedy and Massillon said, companies should contemplate alternative work arrangements such as allowing them to telework for the foreseeable future, reassigning them to a different part of the office or a different role to minimize close contact with other people, changing their shift, or giving them more personal protective equipment and sanitation for their desks.

The EEOC also said in the guidance that the process of an employee receiving a COVID-19 vaccine approved or authorized by the FDA won't be considered a "medical examination" for purposes of the ADA for employers that administer it or that contract with a third party to do so. The ADA places limits on employers' ability to require medical tests or otherwise seek out medical information about workers.

But the EEOC — and outside counsel — still urge employers to be mindful of the law if they ask workers about vaccination before the shot has been administered.

Prepare a Policy, But Plan for Change

Right now, general counsel are most worried about making sure they have the policies and processes in place for when the vaccines are widely available, as well as figuring out how to respond to employees' questions, said Monica Chmielewski, a partner and health care and life sciences lawyer with Foley & Lardner LLP.

On top of trying to make preparations, general counsel should keep in mind that guidance could change, she said.

"I guarantee as the vaccine becomes more readily available, we're going to see more changes," Chmielewski said, adding that general counsel are "spending time and resources right now trying to plan, but thinking that in a few months it could look entirely differently in terms of the landscape, and we may have to go back to the drawing board."

As employers continue to determine what's best for the business, corporate legal decision-makers above all should encourage leaders to be communicative and transparent, and ensure human resources staff are trained to handle questions carefully and without running afoul of civil rights laws.

In addition to counseling her in-house clients to grasp the specific facts and circumstances of their business and employees, Kennedy said she has been suggesting they proactively think about the possible downsides of either requiring immunizations or not doing so.

Some of the key questions she encouraged general counsel to consider are: Do employees work within close proximity to each other, such that the risk is increased for them? Do they work with vulnerable populations? Will the company face backlash if its leaders impose a vaccination requirement? Are managers prepared to make difficult decisions as to how to implement or enforce the policy?

While disability- and religion-based exceptions are the only ones currently recognized by the law, general counsel should expect there will be people who refuse to get the shot because they're uncomfortable with, say, how quickly it was created and became available, Kennedy said.

"The last thing employers want and need right now is to inject distrust or apprehension into their workforce by rushing to implement a mandatory requirement that many employees might refuse to comply with," she said.

General counsel would also be wise to consider the potential workers' compensation claims and thus additional employer costs if employees suffer — or think they've suffered — an adverse reaction to the vaccine following a company's mandated program, Kennedy said.

In-house teams should also be mindful of labor law issues, she said. For unionized workforces, a vaccination requirement might trigger an obligation to collectively bargain.

"But even in non-union environments, employers can run into trouble if they impose such a requirement and employees mobilize and challenge it based on safety or other concerns," Kennedy said.

Lawyers also pointed out challenges that could accompany declining to mandate vaccines. The Occupational Safety and Health Administration obligates all employers regardless of size to ensure a safe workplace. Without an immunization mandate, vaccinated employees might argue they feel uncomfortable working around colleagues who don't receive the COVID-19 shot, Massillon said.

Keep Workers in the Know Along the Way

On top of weighing the pros and cons of a mandate, outside counsel said their corporate clients in various industries are dealing with questions from employees about where and when they can get the COVID-19 vaccine, and if the company will arrange for that to happen.

"Right now, if the employer is not a hospital ... the answer unfortunately is, 'We hope so, but we don't know if we're going to be able to,'" Chmielewski said.

In addition to federal guidance, some states and localities might have their own laws related to an employer's ability to require vaccinations in certain industries, Kennedy said. As a result, she advised general counsel to check local laws and stay on top of developments, especially as the vaccines become more widely available.

Massillon stressed that general counsel play a key role in working with human resources and other managers to ensure the message about the company's decision on whether to mandate vaccines is clear and includes the reasoning behind it.

She also suggested in-house teams counsel their managers to be upfront with employees about the possibility of their policy changing if new guidance is issued, acknowledging it's a fluid situation, and reiterating that the company is watching for developments and will promptly share updates with workers.

"Transparency makes employees feel like they're being heard or they can understand," Massillon said.

--Additional reporting by Britain Eakin, Hailey Konnath and Vin Gurrieri. Editing by Aaron Pelc and Marygrace Murphy.

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