Employers: Thinking About Mandating the COVID Vaccination? Consider These Risks

From whether or not employers can mandate a vaccine to the potential workers’ comp implications, here’s what businesses should be watching as the COVID-19 vaccine rolls out.
By: | December 16, 2020

“Are you going to get the vaccine when it comes out?” my mother asked me on the phone one night. “Do you think it will be safe?”

It was October. COVID-19 had been raging in the U.S. for eight months and, like they often had in the last few months, my telephone conversation with my mother circled around the pandemic and when it would eventually come to an end, likely through mass inoculation.

I answered her, unequivocally, “Yes.”

Conversations about the safety and efficacy of the COVID-19 vaccine candidates are playing out in many households across America and the world at-large.

In the past, vaccine development took over 10 years on average. Pfizer and Moderna, the top contenders for the COVID-19 vaccine, could get emergency use authorizations from the FDA after being developed in less than a year.

Despite being developed quickly, the vaccines have completed stage three trials and all indicators show that they are safe and effective. Moderna reports that its drug is 94% effective at preventing COVID-19 and Pfizer reports its vaccine has a 95% efficacy rate.

Still, people at every level of society have expressed concerns over the speed at which the drug was developed and it’s safety. During the vice presidential debate, vice president-elect Kamala Harris was even questioned about whether or not she’d take a vaccine after previous comments suggested that she was wary of a solely Trump-backed coronavirus vaccine.

For many people, the guidance they’re looking for surrounding the COVID-19 vaccine won’t come from major newspapers or political leaders, but their employers. Since the beginning of the pandemic, workers have been turning to their employers for COVID-19 safety guidance and that is likely to continue through the rollout of the vaccine.

“COVID-19 is really just an episode in this on-going trust relationship between employers and employees,” said Gary Pearce, chief risk architect at Aclaimant, an Insurtech startup.

“There’s a whole bunch of sometimes conflicting, sometimes very technical information and evidence out there and not everybody is really capable or perhaps willing to be up to speed on all that. So they’re going to put their trust in a very small number of people or organizations and their employer needs to be one of them.”

With leadership, comes liability, however. Employers who try to mandate vaccinations may find them liable for health risks their employees face.

Even if they don’t mandate vaccinations, they could be responsible for new workers’ comp risks that arise as people return to the office for the first time after months of remote-work. At the core of it, employers need to be conscious of their reputation and how they’re communicating with their workforce about the vaccine and its potential risks.

Can Employers Mandate a Vaccine?

Gary Pearce, chief risk architect, Aclaimant

One of the strongest stances an employer can take on the safety and efficacy of the COVID-19 vaccine is mandating that their entire workforce become inoculated.

Case law, Pearce said, has pretty much established that it is legal for private employers to require their employees be vaccinated, though it is unlikely many will go that route.

“I don’t know that anybody is going to mandate that their employees receive the vaccine,” said Dr. John Anderson, DO, FACOEM, EVP and chief medical officer at Concentra. “Mandating something that doesn’t have a tremendous amount of history, especially safety history associated with it, has risks.”

Anderson noted that most health care organizations don’t even require their employees to get vaccinated for influenza, they just recommend it. The severity of COVID-19 might have businesses in high-risk industries reconsider, however.

Nursing homes, prisons, some health care companies and other enterprises where the virus has a reputation for spreading quickly could be at the forefront of requiring their employees to get vaccinated.

“Some employers really are going to have no choice but to require vaccinations,” Pearce said.  “There’s a lot of practical issues that really, in most cases will argue against a mandate, I believe. Although in certain environments — prison guards, healthcare — it’s going to be a must.”

Mandating a vaccine might backfire if a large number of employees decide they would rather quit than get the COVID-19 vaccine. Further, there’s no way to guarantee that 100 percent of your workforce receives the vaccine, as there will likely be exemptions for employees with certain disabilities and bonafide religious beliefs.

“Employers do not have to accommodate someone who just says, ‘well, I don’t trust the government. I don’t trust this vaccine or I fear that something bad might happen to me.’ Those reasons aren’t good enough,” Pearce said.

Worker Safety Implications

As the vaccine is rolled out, the worker safety landscape will undergo another round of changes as people adjust to loosened social distancing guidelines, returning to the workplace and any potential side effects that come with the vaccine.

Vaccination is unlikely to happen all at once. Once a drug is approved, the CDC will likely release guidelines detailing who will get the vaccine first, with priority going to health care workers and older or high-risk populations.

The rollout could take multiple months, meaning that employers might find themselves in a situation where some of their workforce is vaccinated while others are not.

“It’s not like we’re going to flip a switch and one day nobody’s vaccinated. The next day, everybody is,” Pearce said. “It’s going to happen over time.”

Additionally, it’s still unclear whether or not those who have been vaccinated can still pass the virus to others, so some precautionary measures, like wearing masks and continuing to social distance will likely need to continue on some level.

As people return to the office, employers should also be prepared for an uptick in injuries, especially amongst new employees who may have been hired during the pandemic

“Given what we know about the side effect profile to date, it seems to be very safe. And as we know, it’s very effective. So fingers crossed that people will accept it and embrace it.” — Dr. John Anderson, DO, FACOEM, EVP and chief medical officer at Concentra.

“More people working usually equates to more injuries in the workplace,” Anderson said, “especially as newer employees join workforces that have been shut down for a while.”

While there may be a slight uptick in injuries, employers can expect COVID-related workers’ comp claims to go down as the population starts to reach herd-immunity.

“In the health care industry and in others we would hopefully see a decline in any COVID-related workers’ comp claims. I think we will see that pretty quickly after the vaccine is widely disseminated,” Anderson said.

The only exception to this decline in COVID-related claims will be among employers who choose to mandate the vaccine. In those cases, employers may continue to see workers’ comp claims related to the vaccine and its side effects.

“If it’s an occupational requirement, then I think there’s a pretty strong element that the injury is going to be compensable under workers compensation, because it will be that it did therefore arise in the course and scope of employment,” Pearce said.

Mind Your Reputation

Dr. John Anderson, DO, FACOEM, EVP and chief medical officer, Concentra.

As the vaccine rollout plays out, employers will need to be cognizant of their communications with employees to make sure that they are sharing reliable information and are protecting their reputation.

“Employees expect their leaders to lead,” Pearce said. “Your workforce needs to be in a continuous repetitive dialogue where this is being reinforced and updates are given in response to the ever changing social conditions, the ever-changing, progress of the disease.”

Part of that means referencing trusted sources like the CDC and leading epidemiologists like Dr. Fauci, when talking about the vaccine, its efficacy and its potential side effects.

“Pay attention to the side effect and adverse reaction profiles as they arise,” Anderson said.

“The Advisory Council on Immunization Practices and the CDC have already developed pathways of reporting for adverse events. I think people will be more likely to use that avenue to report adverse events or side effects that occur with the COVID-19 vaccine than they have been with other vaccines because it’s so novel.”

If employers make sure their communications surrounding the COVID-19 vaccine are accurate, employees will be able to trust in them and will be more likely to accept facts about the vaccines and their risks.

“Given what we know about the side effect profile to date, it seems to be very safe. And as we know, it’s very effective. So fingers crossed that people will accept it and embrace it,” Anderson said.  &

Courtney DuChene is an associate editor at Risk & Insurance. She can be reached at [email protected]

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