Berks County Bar Association The Berks Barrister Spring 2021 - 8

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Take Your Best Shot! Lawyer as Employer and the COVID-19 Vaccination Dilemma
Continued from page 7
policy may violate the ADA prohibition on disability related
inquiries. Some of the consequences (beyond the scope of this
article) depend upon whether the employer administers the
vaccine itself or refers it out to a third party lab. The vaccination
information collected should be treated as medical information
and kept confidential in a medical file. An employer may request
proof of vaccination; but the employer may not follow up by
asking an employee why they have not been vaccinated, unless
that particular inquiry is, also, job related and consistent with the
business necessity.

There are two important exemptions: the disability exemption
and the religious exemption. The disability exemption is somewhat
self-explanatory, because certain employees may not be medically
capable of receiving the vaccine due to their disability. This
situation will likely trigger a duty on the employer to offer a
" reasonable accommodation " to the employee, unless doing so
would create an " undue hardship " on the employer under the
ADA. Possible accommodations under a vaccination program can
include added social distancing measures at work, leave of absence,
remote working, and additional use of PPE in the workplace.
Under Title VII, an employer must provide a reasonable
accommodation to employees who indicate they are unable
to receive a vaccine due to a " sincerely held religious belief or
practice " , unless providing an accommodation would pose an
" undue hardship " on the employer under Title VII. Courts in
Pennsylvania have in fact ruled on religious objections to vaccines
in the near past. In 2017, in Fallon v. Mercy Catholic Medical
Center of Southeastern Pennsylvania 877 F.3d 487 (3d Cir.
2017), the employee refused to get a flu vaccine as required by the
employer and stated he was worried about the health effects of the
flu vaccine and disbelieved the scientifically accepted view that it
was harmless. The Court concluded that his concern about the flu
vaccine was a medical belief not a religious one.

Legal protections but little interest:
The legal protections discussed herein suggest employers
should feel free to mandate all employees get vaccinated as a
condition of their employment. So why have so many employers
resisted pulling that trigger? Well, the answer is a bit complicated,
and also begins with a seldom discussed federal law that was
implicated at the outset of the Emergency Use Authorization
process for the vaccines. The federal Food, Drug, and Cosmetics
Act, 21 U.S.C. ยง564 et seq. allows an individual to refuse to take a
vaccine that was approved under EUA process. The statute itself
is silent on employment consequences, but read in conjunction
with the EEOC guidance and HHS Declaration clearly suggest
that although an employee could refuse to take the vaccine under a
mandatory vaccination program, they may be barred from working
on site and could be terminated without legal recourse. There is no
anti-retaliation provision for employees under this section of the
law. However, at least in Pennsylvania a bill has been introduced
to prohibit employers from taking such action against employees
who refuse the vaccine. H.B.262, introduced in January in the Pa.
House would prohibit mandatory vaccination of employees and
8 | Berks Barrister

medical screenings, and includes remedies such as reinstatement,
treble damages and attorney fees. The bill remains in committee as
of the date of this article.

Notwithstanding the foregoing, employers overhwhelmingly
have NOT mandated covid vaccines, despite near legal immunity for
doing so. A wide variety of reasons have been offered: The EUA
process has rightly or wrongly given rise to reluctance because it is
not as clinically robust as full blown FDA clinical approval; most
employers do not mandate the flu vaccine for their employees;
vaccination is a matter of personal medical choice and privacy for
the employee.
Consequently, both the government and private sector
employers have been promoting voluntary vaccination policies
coupled with the continuation of adherence to CDC/DOH/
OSHA guidance.

Legal issues with voluntary vaccination
programs:
Every employer has a statutory duty to keep the workplace safe
under what is known as the " general duties clause " of the OSHA
law. The administration of a vaccination program must continue
to adhere to those standards. If an employer is not compliant
with CDC/OSHA/DOH guidance and an employee refuses
to return to the workplace on that basis and is terminated, the
employer could face a statutory retaliation claim. An employer
also likely faces Worker's Compensation liability if an employee
take the vaccine as part of a program, (which arises out of their
employment), and has negative side effects requiring medical care.
Employers can also face potential liability under the National
Labor Relations Act if they take adverse action against employees
who discuss or complain about a vaccination program. That
federal law (which is not limited to union workplaces) protects
employees who are engaged in " concerted activities " about the
terms and conditions of employment. Similarly, employers with
collective bargaining agreements may likely need to bargain over
such a program as it is likely a mandatory subject of bargaining.

Employers who engage in vaccination programs should also be
mindful that the time spent getting a vaccine is likely considered
" compensable time " under both state and federal wage and hour
law.

Lawyer as Employer Vaccination " Best
Practices " :
Although legal guidance during the pandemic changes with
testing/vaccination data, there are some " Best Practices " that the
Lawyer as Employer should follow:
	 1. Lead by example and encourage vaccination.

	 2. Incentivize vaccination through cash incentives, gift
incentives, paid time off for getting the vaccine, gift cards, etc.

	 3. Confidentially track the employees who have received the
vaccination and treat that information as medical information.


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Berks County Bar Association The Berks Barrister Spring 2021

Table of Contents for the Digital Edition of Berks County Bar Association The Berks Barrister Spring 2021

Berks County Bar Association The Berks Barrister Spring 2021 - 1
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https://www.nxtbook.com/hoffmann/BerksCountyBar/BerksBarrister_Fall2021
https://www.nxtbook.com/hoffmann/BerksCountyBar/BerksBarrister_Summer2021
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https://www.nxtbook.com/hoffmann/BerksCountyBar/BerksBarrister_Winter2020-21
https://www.nxtbook.com/hoffmann/BerksCountyBar/BerksBarrister_Fall2020
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https://www.nxtbook.com/hoffmann/BerksCountyBar/BerksBarrister_Fall2018
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