With the COVID-19 vaccine anticipated to become available to the general public in 2021, many Michigan employers are questioning how they should proceed with requiring vaccinations.
Can Employers Implement A Mandatory Vaccine Policy?
Currently, there is no federal or Michigan state law mandating COVID-19 vaccinations, however, the Equal Employment Opportunity Commission (“EEOC”) has recently concluded that most employers will be able to mandate COVID-19 vaccinations for their employees performing in-person work if they choose.
However, prior to implementing a mandatory vaccine policy, employers should independently consider their own workforces and make an individualized determination as to whether there is a significant risk of substantial harm to the health and safety of those in the workplace.
Can Employers Implement An Incentivized Vaccine Policy?
Another option, rather than mandating the vaccine, is providing incentives, such as additional compensation, bonuses, vacation, or other paid time off to employees who obtain the COVID-19 vaccine.
Regardless of the route the employer chooses, having a written vaccine policy will prove beneficial in terms of applying the policy uniformly, as well as identifying various options for your employees who may have objections to the vaccine. We strongly encourage you to discuss your vaccination policy options with an attorney prior to implementation.
How Should Employers Handle Employees with Religious Objections or Disabilities?
Employers must also be mindful of employees with disabilities or religious objections which preclude them from getting the COVID-19 vaccine. In response to an employee who states that either a disability or a religious objection precludes them from getting the COVID-19 vaccine, the employer should engage in an interactive process with the employee to determine whether a reasonable accommodation is available to them.
Are There Consequences for Requiring or Failing to Require Vaccinations?
Many employers are likely wondering about potential liability if an employee has an adverse reaction to the COVID-19 vaccine. Although there has been no litigation on this particular issue yet, prior cases considering different vaccines have determined that adverse reactions to mandatory vaccinations may result in workers’ compensation claims.
Even though Michigan’s Workers’ Disability Compensation Act includes an “exclusive remedy” provision providing that the recovery of workers’ compensation benefits will be the employee’s exclusive remedy against an employer for a personal injury or occupational disease, it is possible that workers’ compensation may not apply and that tort or similar liability could arise under state or federal law.
In the alternative, it may be possible for an employee to claim that by refusing to require vaccines, their employer has not provided a safe working environment as required by the Occupational Safety and Health Act. With this in mind, Michigan employers should pay close attention to the Michigan Occupational Safety and Health Administration for further guidance regarding mandatory vaccines in the workplace.
Should I Require my Workforce to be Vaccinated Prior to Returning to In-Person Work?
Ultimately, each employer will need to conduct an individualized assessment of their workplaces prior to making this decision. Please reach out to a Kerr Russell employment attorney with any questions regarding this determination or COVID-19 vaccine policies generally.
If you have questions relating to employment or benefit matters, please contact a Kerr Russell attorney.
About the authors:
Mark C. Knoth chairs the firm’s Labor, Employment, Employee Benefits & ERISA Practice Group. He counsels and advises business owners, managers and human resources professionals on workplace issues. These include civil rights and anti-discrimination laws; employee discipline; wage and hour; overtime; employee leaves; reasonable accommodations; veterans issues; picketing; secondary boycotts; reductions in force; drug testing; unemployment compensation; affirmative action; and union organizing campaigns, among other matters. He additionally drafts employee policies, handbooks, contracts, and covenants not to compete, and investigates threats of violence, allegations of harassment, and other employee misconduct.
Olivia V. Hankinson counsels and advises business owners, managers and human resources professionals on various labor and employment related issues. These often involve concerns which may implicate employment laws including the Americans with Disabilities Act, Title VII of the Civil Rights Act, the Fair Labor Standards Act, the Michigan Persons with Disabilities Civil Rights Act, the Family and Medical Leave Act, the National Labor Relations Act, and the Michigan Occupational Safety and Health Act. Olivia represents employers with respect to unemployment insurance hearings, MIOSHA violation allegations, EEOC investigations, and other employment law matters. She also drafts employee handbooks, employment agreements, restrictive covenants, and various other employment policies.
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Practice AreasLabor, Employment, Employee Benefits and ERISA