A doctor holds the Pfizer BioNTech vaccine and syringe to protect against the coronavirus disease. (Photo: lakshmiprasada S/Shutterstock)
For millions of Americans, the emergency authorization of two COVID-19 vaccines by the federal government was a bright spark of hope in what has been an otherwise bleak pandemic winter. Indeed, according to preliminary modeling from Verisk's Life Risk Navigator platform, the United States could potentially achieve the long-sought herd immunity by the fall of 2021 thanks, in part, to these very vaccines.
For businesses, particularly those engaged in so-called "essential" work or whose workers are required to be in close proximity to their colleagues or the public, the vaccines may also signal something else — the prospect of finally returning to something like normal operations. As vaccine distribution ramps up, employers may be faced with a thorny question: should they mandate inoculation as a condition of employment? If they make vaccination mandatory, they may be creating potentially costly employment practice liability exposures.
Mandates
A survey by the Society of Human Resource Management (SHRM) found that a majority of U.S. workers are likely to get a vaccine if their employer mandates it, and nearly two-thirds of businesses believe the vaccine is critical to business continuity efforts. Despite its perceived importance, roughly 55% of employers in the same survey were unsure whether they would actually mandate vaccinations for their employees.
Employers who wish to mandate vaccination as a pre-requisite for employment or returning to the workplace may create several liability exposures related to employees who decline the vaccine. They could also confront issues related to workplace practices once some employees have been inoculated. For instance, employees who decline a vaccine on religious or health grounds may be given the option to work virtually while the pandemic continues to rage. This, in turn, could establish a dynamic where some employees may allege that virtual work damaged their career opportunities, particularly if employees who accept vaccinations and return to the office earn promotions while those who worked remotely didn't. If virtual work differs substantially from their prior duties, an employee may argue that it constitutes a demotion, or an employee may also allege wrongful reassignment.
There may additional exposures created by employer/employee confusion around whether a business has made "reasonable accommodations" for those who decline inoculation on the basis of religious beliefs. The United States Equal Employment Opportunity Commission (EEOC) has stated that "If an employee cannot get vaccinated for COVID-19 because of a disability or sincerely held religious belief, practice, or observance, and there is no reasonable accommodation possible, then it would be lawful for the employer to exclude the employee from the workplace."
However, the EEOC has indicated that exclusion may not necessarily mean termination, as the EEOC has further noted, "This does not mean the employer may automatically terminate the worker. Employers will need to determine if any other rights apply under the EEO laws or other federal, state, and local authorities." If there is uncertainty with respect to these other rights and if an employer ultimately chooses to terminate an employee who refuses a mandatory COVID-19 vaccination, they may potentially face allegations of wrongful termination. Invasion of privacy type exposures are another vector for COVID-19 vaccine liability in the workplace. For instance, if an employee declines a vaccine based on personal health information (PHI) disclosed on a questionnaire, that PHI information could be accidentally or purposefully disclosed.
A long-tail risk
Decisions surrounding employee advancement and career opportunities may become deeply entangled with decisions around an organization's vaccination policy — and the fallout from those decisions could take months or even years to manifest themselves. While the prospect of potentially obtaining immunity from the coronavirus has excited the minds of many employers and employees alike, the long tail of the pandemic's employment liability exposures is a risk that shouldn't be overlooked.
Steve Whelan is director of management/professional liability product development for ISO. He is responsible for overseeing the development of insurance programs for the following lines: directors and officers (D&O), errors and omissions(E&O), employment practices liability (EPL), fiduciary liability, crime, and financial institutions. He can be reached at Stephen.Whelan@verisk.com.
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