With Governor Lamont’s change to the vaccine distribution program to an age-based rollout starting March 1, 2021, all employers (not simply those “essential” workplaces) must now consider whether to require, or even to encourage, their employees to get the vaccine.

At our webinar earlier this month (which is still available for on-demand viewing here), we discussed some of the areas that employers should start to think about. Employers should rush those considerations to completion with the state’s new rollout plan.

Risks and Litigation Concerns

Unvaccinated Employees

Unvaccinated employees pose a risk to people that they encounter during the workday. This issue is particularly applicable to the service industry. For example, an unvaccinated waitress may interact with dozens, if not hundreds of people during her shift. Can the employer be liable if the waitress infected a customer?

Putting the causation concerns aside for a moment, an employer in the above situation may be hit with a multitude of claims, including but not limited to: civil assault; respondeat superior; negligent supervision; and intentional or negligent infliction of emotional distress. These claims, in the context of COVID-19 infection, have not yet been tested in the courts; however, we anticipate a continued rise in such claims.

Throughout the past year, businesses have faced litigation threats based on actions taken, or not taken, during the pandemic. Consider the case of a recent wedding in Maine: a 55-person wedding reception in rural Maine was linked to 177 COVID-19 infections, including seven deaths. The wedding venue is now rumored to face a lawsuit based on negligence. The prospective suit demonstrates how claims may be levied against businesses in the age of COVID-19.

Employers will have to consider the threats that unvaccinated employees may pose in the workplace and how those threats can be mitigated. Ultimately, employers may have to consider mandating vaccines for the segment of their population that refuses to get the vaccine voluntarily.

Mandatory Vaccination Program

While vaccinating employees may help reduce liability for COVID-19 cases, requiring an employee to get the vaccine creates its own list of legal considerations.

Complications arise when an employee declines to get vaccinated due either to a disability or religious reasons. Refusing to get the vaccine for disability or religious reasons triggers the application of anti-discrimination laws. On a national level, employers would need to look to the Americans with Disabilities Act (ADA) and to Title VII of the Civil Rights Act of 1964. Under the ADA, workers may ask their employers for an accommodation (which may or may not be able to be provided). Further, under Title VII, workers may request an accommodation if taking the vaccine violates their “sincerely held” religious beliefs.

We will be discussing accommodations further at an upcoming mini-webinar in early March.

Protections for Employers

There are two statutory sources of protection for employers from possible COVID-19 claims: workers’ compensation coverage and the Public Readiness and Emergency Preparedness Act (PREP).

Workers’ Compensation

Workers’ compensation coverage is dependent on state law and whether vaccination is mandated by the employer. In most states, if the employer mandates vaccination, employees’ liability claims would be compensable under workers’ compensation. Some states, such as California, would consider a vaccine-related injury compensable under workers’ compensation even if the employer did not require vaccination.

PREP: Public Readiness and Emergency Preparedness Act

The PREP Act is a 2005 federal law that empowers the Health & Human Services (HHS) Secretary to provide legal protection to companies making or distributing medical supplies, such as vaccines and treatments unless there is “willful misconduct” by the company. The PREP Act was invoked by HHS Secretary Alex Azar in February 2020 in response to the COVID-19 crisis. It protects “covered persons” from being sued for money damages over injuries related to the administration or use of products to treat or protect against COVID-19 until 2024. The PREP Act provides very broad coverage. Employers who administer a vaccination program for employees may be protected by the PREP Act.

Deciding whether to implement a mandatory or voluntary vaccine program is a fact-specific endeavor. At the end of the day, employers must create a plan that addresses the needs and interests of the company and the health and safety of workers.  Be sure to discuss such plans with your legal counsel to ensure compliance with applicable federal and state law.