by Ramona Palmer-Eason
From leave of absence management to employment applications, employers are sure to face new challenges in 2021. One of the key employer challenges I recently outlined during a presentation, and in our 2021 Employer Checklist, relates to vaccination plans and guidance under Missouri law. Following the federal government’s plans to increase vaccine distributions, now is a good time for employers to consider their return-to-work strategies, including workforce vaccination strategies.
Missouri is currently in Phase 1A and 1B of Tier 1 eligibility for administering the COVID-19 vaccination to individuals throughout the state under its vaccination plan. As the distribution of the COVID-19 vaccine continues to ramp up, employers will likely play a key role in the distribution. As such, employers must evaluate the operational and legal considerations for implementing a mandatory or voluntary vaccination program.
First, employers should consider when vaccinations will be available to their workers. Vaccinations are not expected to be widely available to all individuals until well into the summer months. This distribution timing limits the number of employees who may be eligible to receive the vaccine right away. Under the Missouri Plan, Tier 1A and 1B eligible populations include those at nursing facilities, public facing health care workers, those at increased risk for severe COVID-19 illness including those 65 years of age or older, childcare workers, teachers/staff, energy, critical manufacturing, food/ag plants and other essential employees vital to keeping the key functions of society running. Employers have latitude to define within their businesses what workers are “essential.”
In addition to the operational considerations, employers must also consider the legal parameters for implementing a vaccination program as a part of their return to worksite plans. Under guidance provided by the Equal Employment Opportunity Commission, an employer can mandate COVID-19 vaccinations prior to the return to the workforce following an assessment of the direct threat of allowing workers to return to the worksite unvaccinated. In evaluating these risks, the employer will look to the: (1) duration of the risk, (2) the nature and severity of the potential harm, (3) the likelihood that the potential harm will occur and (4) the imminence of the potential harm. If a direct threat is established on these bases, under the Americans with Disabilities Act, an employer must consider providing a reasonable accommodation to workers with disabilities who cannot meet the requirement to be vaccinated.
Further, under Title VII of the Civil Rights Act of 1964, if a vaccination program is mandated, an employer must also be prepared to consider a reasonable accommodation if an employee’s sincerely held religious beliefs restrict them from obtaining the vaccination. Vaccination programs that are offered purely as voluntary do not require the employer to provide for an accommodation unless the voluntary nature of the program becomes in question. Other helpful considerations for employers operating in the pandemic can be found in the 2021 Employer Checklist.
Employers should stay apprised of the evolving developments in this area as they begin to consider what role, if any, they will take in vaccine distribution.
Ramona Palmer-Eason is a seasoned legal practitioner with extensive experience in employment and labor, employee benefits and executive compensation, litigation and compliance. With 20 years of experience as in-house counsel for a major international retailer, Ramona’s experience spans the intersection of the law and human resources. She can be reached at 816.472.3143 or firstname.lastname@example.org.