WASHINGTON – With vaccines being made available to a growing number of front-line workers at meat and poultry processing plants across the country, companies are scrambling to coordinate and efficiently vaccinate as many employees as possible. Whether or not to employers should require vaccinations as a condition of employment was addressed on Feb. 3 during a virtual presentation that was part of a series of weekly COVID-19 Updates hosted by the North American Meat Institute.

While the weakest link in the current nationwide push to distribute vaccinations is a supply shortage, research indicates that as many as two-thirds of US workers support employers requiring vaccines, as many as one-third of employees would not get the vaccine, even if their employer required it. Paula Day, vice president, director of HR compliance consulting with Kansas City, Mo.-based Lockton Cos., said a targeted education campaign gives employers the best opportunity to convince workers to be voluntarily vaccinated. During the presentation, “Legal Considerations for the Vaccine,” Day referenced a white paper published by CVS Health that concluded that the hesitancy of people to get the vaccine varied depending on ethnicity, age and gender.

“Hispanic, Spanish speaking and Asian persons were less hesitant and more likely to go out and get the vaccine than the black population and native American population that were surveyed,” Day said.

The White paper also indicated that men were more likely to be willing to get vaccinated as were college-educated people. Geography also played a part, according to the CVS research, with people in the Midwest most likely to be vaccinated followed by western states and then northeastern states. Southern states were the least likely in terms of location.

“Having a culturally appropriate awareness education type campaign that's designed to and directed towards the specific demographics of your workforce can be a value to you when you're trying to encourage and educate persons about the vaccination,” Day concluded from the survey.

Day pointed out that with the manufacturing sector being the most common category of employer facing pending litigation (more than 1,700 cases) related to COVID-19 and wrongful termination, employers should be aware that litigation might result from the type of vaccination policy they implement and currently there is no precedent established for such cases.

“We don't know how the courts are going to address claims related to the COVID 19 vaccination,” Day said.

While most employers in the meat and poultry processing industry expected to require workers to be vaccinated given the focus on this segment during the pandemic, they should be aware that the Equal Employment Opportunity Commission’s updated guidance to address workplace vaccinations on Dec. 16, 2020, came with some caveats. For example, if the employer administers the vaccination via a third-party healthcare provider, as companies like Tyson Foods and Foster Farms have begun doing at their plants this past week, they must show that vaccination screening questions are “job related and consistent with business necessity,” to be in accordance with the Americans with Disabilities Act (ADA).

Day recommended that companies with a mandatory vaccination to utilize a third-party healthcare provider that doesn’t have a contract with the company, such as CVS or Walgreens, where the screening will not include those “job-related” questions. The EEOC said the ADA compliance does not apply to the vaccination itself or have bearing on screening questions if the vaccination is administered by a third party that has no affiliation with the employer and no participation by the employer.  

Employers must consider disability and religious accommodation requests if they are raised by an employee or applicant for employment and requiring vaccination despite these requests requires the employer to show that any unvaccinated worker would be a “direct threat” due to the “significant risk of substantial harm to the health or safety of the individual or others that cannot be reduced by reasonable accommodation,” according to the EEOC.

Religious accommodation requests pose unique challenges, Day said.  

“The EEOC did caution employers to assume that requests for a religious accommodation is based on a sincerely held religious belief because the definition of religion is so broad and protects beliefs the employer may not be aware of,” Day said. “But if you have an objective basis for questioning the sincerity of an employee's stated religious belief, then you can request more information.”

Employers should be advised that termination should not be automatic if an employee refuses to be vaccinated and is therefore determined to be a “direct threat” until all reasonable accommodations are considered. For most front-line workers, accommodations including working from home are not feasible and are therefore limited. Day pointed out that employees objecting to the vaccine due to a medical condition can trigger ADA compliance and consideration for reasonable accommodation. For these people, employer considerations include:

• Whether the unvaccinated employee would likely come into contact with customers or the public whose vaccination status is unknown.
• Will current PPE measures, plexiglass and social distancing be sufficient to reduce risks?
• Can the person’s schedule be changed to lessen the risk?
• Have at least 80% of the co-workers working with the individual objecting been vaccinated?

“Certainly, if you get to that point where you feel like termination may be your only alternative, you'd want to consult with your in-house counsel or outside counsel,” Day said.

She also cautioned employers to consider investigation of state-specific legislation related to mandating the COVID-19 vaccine, which can be more stringent than ADA compliance. States such as Rhode Island and Tennessee have pending legislation that would protect certain employees from being required to receive vaccinations and prohibit discrimination based on vaccination status; Oregon prohibits mandated vaccination in lieu of a state or federal requirement; and political beliefs and party affiliation are protected in New York and in the District of Columbia, where statutes may protect vaccination opposition that is tied to a political belief.

Day also discussed how President Joe Biden’s Jan. 21 executive order resulted in the Occupational Safety and Health Administration issuing stronger workplace guidance with regard to the coronavirus. The guidance includes recommendations that employers make the offer of the COVID-19 vaccine at not cost to eligible workers and provide educational resources on the benefits and safety of the vaccine.  

The initial consensus is the guidance will ultimately become the standard that OSHA expects when it comes to enforcement actions and employers are therefore encouraged to review their current COVID-19 prevention plans and implement the recommendations of the guidance moving forward.   

Other considerations for implementing a mandatory COVID-19 vaccination program presented during the presentation included:

• Will the policy be companywide and impact all employees in each job classification?
• What if a large portion of the workforce refuses the vaccine mandate?
• Will proof of vaccination be required?
• How will potential side effects be handled?
• How long will employees be given to comply?

The success of offering alternatives to employers making COVID-19 vaccination mandatory depends largely on the reasons for hesitancy among workers as well as the education they have about the benefits of the vaccine. Accessibility is also a factor that Day mentioned, saying employers could make it easier by offering on-site vaccination or providing scheduling assistance.

For companies considering alternatives to a mandatory policy, alternatives included providing incentives to encourage employees to get the vaccine, offering paid time off during and after the vaccine and offering bonuses or gift cards. Day pointed out that any incentives must be offered to all employees, including those with medical religious objections to the vaccine.