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

By Bryan Johnson and Samuel Licker | December 28, 2020

The long-awaited and highly anticipated COVID-19 vaccine is here. The first to arrive on the scene, from Pfizer-BioNTech, received emergency use authorization from the Food and Drug Administration several days ago. On the heels of that, Moderna’s version got the official nod.

No doubt, this is great news for a nation fighting the grips of such an uber infectious and potentially deadly disease. Even so, the introduction of these immunizations begs several questions—within the insurance industry and otherwise—concerning distribution plans, efficacy, and the timing of widespread availability.

Also on the minds of insurance professionals beyond “should I or shouldn’t I” is whether they can compel their employees to be inoculated against the novel coronavirus.

The Short Answer Is Yes

We are all entering new territory with respect to COVID-19 vaccinations. In the wake of Operation Warp Speed, the Pfizer and Moderna products have an unknown record of effectiveness, and the extent of their side effects is not entirely clear, which could leave some a bit tentative about being injected. Nevertheless, from a legal perspective, there is little preventing a private employer in the insurance space from imposing a vaccination requirement on its employees. Indeed, vaccine skeptics and those on the fence when it comes to the Pfizer and Moderna offerings may not be happy to hear that in most cases companies can mandate that their employees receive COVID-19 vaccinations, once available, as a condition of new or continued employment.

Whether compulsory vaccination in the insurance-related workplace should be implemented is another question altogether.

To be clear, this discussion applies to private businesses only (both in and out of the insurance sector), and not to federal, state and local government employers subject to constitutional restrictions that may limit their ability to implement COVID-19 vaccination requirements.

Basis of a COVID-19 Vaccination Mandate

For years, employers have been legally authorized to require their workforces to get an annual flu vaccine in order to continue working. Consistent with this view, the U.S. Occupational Safety and Health Administration has long taken the position that while employers are not forced to compel employees to be vaccinated, they may do so. Still, OSHA has imposed a couple of limitations upon such an employer mandate: (1) where there is a reasonable belief that an employee has a medical condition that could cause a real danger of serious illness or death in the event of inoculation, and (2) if the employee maintains privately held religious beliefs that are inconsistent with taking vaccines.

When it comes to the newly approved COVID-19 vaccines, the federal government’s position seems largely unchanged. In fact, the U.S. Equal Employment Opportunity Commission updated its COVID-19 guidance this month, explaining that employers can require employees to receive a COVID-19 vaccine (once eligible) in order for them to return to, or remain on, the job. This is true unless employees opposed to immunization demonstrate that a medical disability or sincere religious belief exempt them from a vaccine mandate, in which case reasonable accommodations must be made for them, if possible and as explained below.

Exemptions and Reasonable Accommodations

Employees may refuse to be vaccinated if they suffer from medical conditions covered by the Americans with Disabilities Act or hold closely held religious beliefs under Title VII of the Civil Rights Act. Considering the severe health and economic impact COVID-19 has had here in the U.S., the bar is quite high for employees looking to trigger either exception to their employer’s mandatory vaccination policy. Nevertheless, it is incumbent upon employers to advise employees of their rights to request a vaccine exemption under federal, state or local law.

If an employee refuses a COVID-19 vaccination because of a medical disability contemplated in the ADA, the employer must provide a reasonable accommodation for that employer in lieu of termination. Such an accommodation cannot result in an undue hardship to the employer (read: significant difficulty or expense), and includes the opportunity for the dissenting employee to work offsite, when possible. To be sure, certain circumstances would not allow for telecommuting—for instance, retail and hospitality jobs. In any event, the ADA remains a deterrent to COVID-19 vaccine mandates, and the law requires that such directives be job-related, consistent with business necessity, and no more intrusive than necessary.

Similarly, and according to the EEOC and Title VII, a reasonable accommodation must be made for employees whose sincerely held religious beliefs, practices, or observances prevent them from taking the COVID-19 vaccine. Again, however, an employer would not be obligated to provide a reasonable accommodation if doing so poses an undue hardship, which requires even less of a showing under Title VII.

Exceptions aside, the EEOC has made clear that if an unvaccinated employee presents a threat to the health and safety of other employees or, more broadly, the workplace, and if that threat cannot be eliminated through reasonable accommodation, the employer can exclude the non-vaccinated employee from the workforce.

Should You Institute a Vaccination Mandate?

Setting aside the question of legality, employers in the insurance world face a tough decision whether or not to implement and enforce mandatory vaccination protocols. As mentioned, the COVID-19 vaccine does not have a proven record of safety or efficacy, which means employers should anticipate significant pushback from at least some employees that are forced to be immunized. Depending upon your business and circumstances, a logical compromise might be to require onsite workers to receive vaccines, while allowing dissenters to work remotely.

It is important to understand that while legal, vaccine policies may lead to lawsuits filed by disgruntled employees who either do not want to be vaccinated or experience adverse reactions to inoculations. This is but one of the potential downsides of a vaccine requirement, along with the impact such a mandate could have upon employee relations in light of widespread individual skepticism that might spark workplace tension. But negative consequences such as these must be weighed against the overwhelming public health benefit and business continuity that is sure to come if and when workforces nationwide are immunized against COVID-19.

In Closing

For its part, the EEOC advises that best practice is to encourage employees to receive COVID-19 vaccines on a voluntary basis, rather than mandate it. That being said, each employer must do what it believes is best for its business.

Whatever the case may be, it is widely recommended that insurance employers provide proper education relating to COVID-19 protocol, vaccinations in general, and the rights of employees to refuse a vaccine under the ADA and Title VII. Likewise, you should—and in some instances must—continue practicing safe exposure control to prevent the spread of the novel coronavirus; provide paid sick leave to employees to reduce the pressure of reporting to work onsite when sick; and make it easy for employees to receive inoculations to fend of COVID-19, even when not mandated.

About Bryan Johnson

Bryan Johnson is a partner at Michelman & Robinson, LLP, a national law firm with offices in Los Angeles, Orange County (California), San Francisco, Chicago, and New York City. A powerhouse litigator, Johnson has also forged a particular expertise handling matters arising out of COVID-19, including PPP compliance. He can be contacted at bjohnson@mrllp.com or by phone at (312) 706-7762.

About Samuel Licker

Samuel Licker is an associate at Michelman & Robinson, LLP, a national law firm with offices in Los Angeles, Orange County (California), San Francisco, Chicago, and New York City. He is specializing in corporate law and matters pertaining to COVID-19. He can be contacted at slicker@mrllp.com or by phone at (310) 299-5500.

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