Berks County Bar Association The Berks Barrister Spring 2021 - 7

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Take Your Best Shot!
Lawyer as Employer and the
COVID-19 Vaccination Dilemma
By Kevin A. Moore, Esquire

As 2020 came to a close and 2021 dawned, all employers,
including attorneys, law firms, and solo practitioners, faced
new regulatory guidance which focused on the proverbial
light at the end of the tunnel: mass inoculation. Experts agree
that the Coronavirus may never be completely eradicated,
yet human immunity, with the help of vaccines, is the most
effective way to reduce the spread and manage the virus.

The Vaccines:
As of the date of this publication, three companies, Pfizer,
Moderna and Johnson & Johnson, have been approved for the
manufacture and distribution of a Covid-19 vaccine by the FDA
through Emergency Use Authorization ( " EUA " ). EUA is an
expedited approval process by the FDA which, inter alia, shortens
the time period for FDA approval and reduces the number and
length of clinical trials necessary for approval. Early vaccination
data suggests a high level of success against the most serious
symptoms.

The Legal Landscape:
All employers, including attorneys, remain subject to the wellknown Covid-19 pandemic guidance published by the Centers
for Disease Control (CDC), the Occupational Safety and Health
Administration (OSHA) and the Pa. Dept. of Health (DOH)
on matters such as mask wearing, social distancing and hand
sanitation. Turning to vaccines, Pennsylvania Governor Wolf
announced January 8, 2021, his COVID-19 Vaccination Plan,
which can be found at https://www.health.pa.gov/topics/disease/
coronavirus/pages/vaccine.aspx. The plan rolls out the vaccine
distribution in categories, based upon factors such as age, medical
condition and the nature of employment. Attorneys, judges, and
court staff are included in Category 1C, the Third Phase of the
program. Although the plan is in place, actual distribution has
been slowed by disorganization, logistics delays, and even the
weather.

Employers and Covid Vaccinations:
At this time, there is no federal or state law mandate for
vaccinations of employees. According to President Judge Thomas

G. Parisi, the Berks County Court is not mandating vaccination
of the County employees who work in the court system. County
Solicitor Christine Sadler notes there is no discussion among the
County Commissioners at this time to mandate vaccinations, but
the County has already set up clinics for employees and has well
over 200 employees inoculated thus far. Both indicate support
for voluntary vaccination once the vaccine becomes more widely
available.

So, when the vaccine does arrive for Category 1C, what are
the legal parameters for employers considering mandatory or
voluntary covid vaccination programs? " The answer requires a brief
look back at the onset of the pandemic.

The PREP Act:
The Public Readiness and Emergency Preparedness Act
(PREP) 42 U.S.C. §247d et seq. is a federal law that authorizes
the Secretary of the Department of Health and Human Services
(DHHS) to issue a declaration providing legal immunity to
individuals and entities involved in the development, manufacture,
testing, distribution, and administration and use of medical
countermeasures described in a declaration to combat certain
medical emergencies such as a pandemic. In March 2020, the
DHHS Secretary issued such a declaration and has extended the
declaration through 2024. There has been little discussion as to
employer immunity under the PREP Act because it has not been
tested in court. However, most legal scholars agree a clear reading
of the statute extends immunity to entities, such as businesses, who
administer or use the countermeasures. Those terms can include a
COVID vaccination program.

EEOC GUIDANCE:
In December 2020 the United States Equal Opportunity
Employment Commission (EEOC) issued guidance advising
that mandatory vaccine programs would not run afoul of the
Americans with Disabilities Act (ADA) 42 U.S.C.§12101 et
seq. or Title VII of the Civil Rights Act 42 U.S.C. §2000e et
seq. in certain instances. For example, the EEOC advises that
administering the vaccine itself does not constitute a " medical
examination " , for which there are restrictions under the ADA.
Vaccination prescreening questions as part of a mandatory vaccine

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Spring 2021 | 7

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Berks County Bar Association The Berks Barrister Spring 2021

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