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COVID-19 Vaccines: Should You Mandate, Motivate or Educate Employees?

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For the past year, employers have grappled with unprecedented workplace safety and human resources challenges, forced to address safety measures that were unfamiliar for many industries. Employees have become accustomed to daily health screening and masks, and human resources has added COVID safety training and enforcement to its job duties. As vaccines are becoming more prevalent, employers have to now decide whether they should vaccinate their workforces. Making this decision can seem daunting and the applicable employment laws can seem overwhelming. However, there are some baseline considerations that may help.

As a threshold matter, employers are obligated under the OSHA General Duty Clause to provide a safe working environment to their employees. At the direction of President Joe Biden, OSHA released new comprehensive guidance regarding COVID workplace safety, including a 16-point list of essential components of a workplace safety program. OSHA recommended that employers make the vaccine available to eligible employees at no cost, and made clear that employers must continue to enforce COVID safety protocols regardless of an employee’s vaccination status “because at this time, there is not evidence that COVID-19 vaccines prevent transmission of the virus from person-to-person.”

Employers now must determine whether they will mandate, motivate, or educate employees to receive the vaccine. They will first have to determine whether the vaccine will provide a safer working environment. While it seems clear that the vaccine will minimize or eliminate the vaccinated individual’s COVID symptoms, it remains unclear whether a vaccinated worker may spread the virus to others. Therefore, a vaccinated workforce may still be a contagious one.   

Businesses that serve in-person customers may benefit from mandating the vaccine. A local restaurant or retailer may be able to advertise that its staff is vaccinated encouraging patrons to return. While a mandatory vaccine program may be complex, the benefit of returning customers may outweigh the pain of a program. Conversely, in an organization where most employees have remained remote and business has continued at normal levels, the complexity of a mandatory program may not be worth it. In the latter scenario, it may be better to implement a voluntary program, which is easier to administer and has less compliance complexity. Employers will have to weigh the return on investment for each approach.

Employers will also have to determine their appetite for risk. Many initially lean toward a mandatory vaccine approach in an effort to protect employees from becoming seriously ill. However, even mandatory programs pose liability risks for employers. Essentially, there are two schools of thought regarding mandatory vaccine programs:

  1. A vaccinated workforce is essential to safety. A vaccinated workforce will reduce community spread and bring the workforce closer to herd immunity. The fewer employees that become symptomatic or sick, the sooner we may reduce COVID-19’s spread. Likewise, it would be negligent, or a violation of the employer’s General Duty obligations, to not mandate eligible employees to receive the vaccine.
  2. The vaccine is too new to mandate. On the other hand, some believe that it would be negligent, or a violation of an employer’s General Duty to require employees to receive the vaccine, noting that the vaccine is merely under emergency authorization. Consequently, mandating that eligible employees receive the vaccine would create employer liability for any possible harm the vaccine could cause to employees.  

It is also important to note that mandatory programs will likely trigger workers compensation coverage for any medical services and/or lost time associated with employee reactions to the vaccine. Workers compensation coverage is not always a bad thing. Employers should remember that the workers compensation exclusive remedy provision protects employers from negligence and tort claims (but not gross negligence). 

Employers should also consider the practical and operational complexities associated with a vaccination program. Employers who implement a mandatory program must be prepared to enforce the rules. They may be faced with difficult decisions regarding candidates and eligible employees who refuse to receive the vaccine (without any legal protections). Can the employer continue to recruit and retain talent under a mandatory program?

Regardless of where an employer lands on the vaccine program spectrum, they must take their employee complaints and concerns seriously. Likewise, employers must not take adverse action against a complaining employee. Employee OSHA whistleblower cases have reached unprecedented numbers. As of February 5, there have been 4,738 COVID OSHA whistleblower complaints filed in the previous 12-months. Before 2020 (and COVID-19), the largest number of complaints received by OSHA in a 12-month period was 3,355 in 2016.

The good news, if there is any, is that employers that provide safe working environments, are open to employee concerns, and communicate with workers are already taking positive and proactive steps to avoiding liability and litigation. The following best practices may be helpful: 

  • Review your COVID safety program to ensure it comports with OSHA’s 16-point COVID prevention program guidance, and continue to review and update as guidance and regulations change.
  • Provide managers and employees regular safety training, and provide managers with training to enforce safety programs, hold employees accountable, and document all safety incidents and violations.
  • Stay up to date with regulations. OSHA has updated emergency temporary standards, and local and state laws continue to change rapidly.
  • Update anti-retaliation policies to include COVID safety protocols. Also consider a whistleblower hotline and ensure that managers are trained and understand how to take seriously and address employee concerns and complaints.
  • Be sure your workforce has the most current information regarding COVID-19, its symptoms and transmission, and the vaccine. Also be sure to provide all communication in multiple languages for a multilingual workforce.

Ultimately, COVID workplace safety is at the core of any employer’s operations. Whether an employer mandates, motivates or educates its employees to receive the vaccine, they must continue to evolve and enforce their COVID safety protocols.

Preparing for the Next Stage of the COVID-19 Pandemic at RIMS Content Roundtable

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In last week’s “RIMS Content Roundtable: COVID-19 Vaccines and Distribution,” a group of RIMS members gathered for an exclusive Q&A with Dr. Adrian Hyzler, chief medical officer at Healix International, who focused on progress with COVID-19 vaccination efforts and moving toward a “next phase” of the pandemic.

“Where we’re headed is: this pandemic will end—all pandemics end—but it doesn’t end all of a sudden, it goes out with a whimper…it sort of just seeps away at different rates around the world,” Hyzler said, noting the rates of vaccination and controls implemented country by country will curb the coronavirus at different paces. “But it’s now going to be an endemic disease, meaning it’s something we live with. We’re not going to get rid of this disease.”

He believes recognition among public health experts that COVID-19 will become endemic rather than be eradicated prompts new conversations about expectations and preparations around the world.

“The new dialogue is: what is the acceptable level of COVID and what is the acceptable level of deaths from COVID? Because COVID is a respiratory disease and people die of respiratory diseases every year, especially in winter. That’s something we live with,” Hyzler said. “We’re going to have to get to a point where there are going to be people who die from COVID every year, but they’re not going to overrun hospitals, and they’re not going to affect care of other diseases.”

Getting to the stage of “a disease we live with” requires mass vaccination, and he stressed the importance of the widespread effort to encourage people to get COVID vaccines as soon as possible. Scientists are not yet sure what percentage of the population will need to be fully vaccinated to control the pandemic sufficiently and, he said, “that’s vaccinated across the whole population evenly, and that’s not the case—we know there are communities where they are vaccine-hesitant, we know there are religious groups that are not as confident about the vaccine, and they tend to cluster, so those are always ready for outbreaks.”

Rather than discuss the sometimes controversial or scientifically debatable concept of “herd immunity,” Hyzler encouraged thinking about “community immunity.”

“‘Community immunity’ is good because it’s more about what we can do for each other,” he explained. “Getting vaccinated, for a 28-year-old, is not necessarily about that person, it’s about what it can do for the community—the older people, the people who have preexisting conditions that make them vulnerable.”

This kind of community orientation and widespread adherence to best practices will be critical in getting to any next phase of the pandemic, and to staying there. Reflecting on his experience of the acute lockdowns implemented in the U.K., for example, Hyzler stressed the lessons learned about the impact of mass adherence to mitigation and prevention measures. “Even with the variant that’s come out here that is very transmissible and has become common in the States, we’ve shown that non-pharmaceutical interventions—which are masks, distancing, isolation, hygiene—they work,” he said.

Many of these non-pharmaceutical interventions will not be going away any time soon—indeed, they may be just as critical moving forward. Hyzler predicted, “I think, into next year, we may still be wearing masks in many situations and there may be a great move to more things outdoors, since we know how much safer that is, and I think we’ll have learned a lot of things from this… Hopefully we’ll also be more ready for something that will happen again.”

As the world moves toward mass vaccination to help curb COVID-19, companies should be preparing for the next stage of the pandemic and creating detailed plans for safely returning to work. To that end, Hyzler noted some large private companies have publicly offered resources to help other enterprises protect employees and operations amid the pandemic and prepare for a return to workplaces.

For example, Ford has published two versions of a “Return to Work Playbook,” one for manufacturing and another for non-manufacturing companies. According to Ford, in addition to providing these documents to employees, “the company is also providing a copy to its suppliers, business partners and relevant third parties to ensure they are all aware of its health and safety practices when they are on site at Ford facilities or are interacting with Ford personnel.” Companies outside of Ford’s supply chain can also benefit, however.

“Add in some CDC advice, and look at what people [around you] are doing, because there are little things you can do that are very specific to your area or your workforce,” Hyzler recommended. “Then, take the information [from the playbook] that’s useful and mold it into a mini version of a playbook, if you’re a smaller company.”

In addition to the Ford playbooks Hyzler mentioned, check out these publicly available resources from the private and public sectors that may offer help in managing COVID-19 risks and creating a return-to-work plan for your enterprise:

Ford’s Return to Work Manufacturing Playbook [PDF]
Ford’s Return to Work Non-Manufacturing Playbook [PDF]
IBM’s Return to Workplace Playbook [PDF]
Kaiser Permanente’s COVID-19 Return to Work Playbook
CDC’s Guidance for Businesses and Employers Responding to Coronavirus Disease 2019 (COVID-19)
CDC’s “Daily Activities” Guide for Returning to Work
OSHA’s Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace

Participants in the roundtable event were able to debrief with fellow risk professionals in breakout rooms, sharing impressions from the session and experience addressing related risks within their own organizations. For more opportunities to discuss return-to-work plans, vaccine considerations and other COVID-related risks with other risk professionals, all RIMS members can continue the conversation on Opis, the society’s community engagement and networking platform. Among almost 200 education sessions, the upcoming RIMS Live 2021 virtual conference will also offer dozens of COVID-related education and networking events from April 19 to 30, and registration is now open. To hear more insights directly from Dr. Hyzler, you can check out his appearances on the RIMScast podcast.

‘Take-Home COVID-19’ Claims: Preparing for a Second Wave of Coronavirus Litigation

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The Spanish Influenza epidemic came in three waves, with the first hitting in March 1918, the second in the fall and the third in the winter of 1919. The U.S. Centers for Disease Control and Prevention considers the second wave to have been the most deadly. In the United States, well over half of the epidemic’s death toll of 675,000 occurred during the second wave. It is no surprise then that public health experts were already warning of the possibility of a second wave of the coronavirus pandemic when the world was just beginning to acknowledge that the first wave was upon it in February.

Personal injury mass litigation also comes in waves. Consider asbestos: In the first wave, individuals who worked directly with asbestos filed workers compensation claims. Workers exposed to asbestos in products filed products liability suits during the second wave. A third wave included “take-home asbestos” claims in which workers’ children and spouses sued for illnesses caused by exposure to asbestos fibers taken home from work. A fourth wave is now underway with the alleged asbestos contamination of consumer talc products.

The first wave of personal injury coronavirus litigation emerged in early March when a married couple sued Princess Cruise Lines for gross negligence for placing “…profits over the safety of its passengers, crew, and the general public in continuing to operate business as usual.” Many similar individual and class action lawsuits have followed. According to an analysis by the Miami Herald, some 3,600 cruise line passengers have contracted COVID-19 and more than 100 have died. 

The situation in nursing homes is far worse. Nursing home residents account for an estimated 40% of U.S. coronavirus deaths thus far. Predictably, wrongful death suits filed by the family members of nursing home residents are surging, even as some states move to shield nursing home operators from liability. Personal injury lawsuits have also been filed against hospitals, meatpackers, restaurants, grocery stores and warehousing operations.

However, as the first wave of the coronavirus pandemic subsides, personal injury litigation may subside along with it. But what if the pandemic has a second wave? Although there is a great deal of uncertainty, public health experts now believe that there is no inherent seasonality to COVID-19 itself, but they remain deeply concerned that a combination of complacency and greater indoor activity could lead to a second wave of infections in the coming months.

What would a second wave of coronavirus personal injury litigation look like? One possibility that modelers at Praedicat are considering is a wave of “take-home COVID-19” litigation arising from occupational infection, coupled with high rates of intra-family transmission. Praedicat modelers estimate that 7-9% of COVID-19 deaths in the first wave have been family members of workers in essential industries who acquired coronavirus at work. With widespread testing and improved contact tracing, take-home transmission could be relatively easy to demonstrate during a second wave. The first take-home COVID-19 lawsuits were filed in August against an electrical supply company and a meatpacking facility, and the precursors to these complaints are present in earlier lawsuits filed against Amazon and McDonald’s.

Many public health officials believe that it is entirely within our power to keep a second wave of the virus from forming while we wait for a vaccine to be developed and deployed. A unified and steadfast public health campaign is critical if we are to avoid a second wave, individual companies working to limit transmission among their workers and customers is as well. First and foremost, this means closely adhering to federal, state, and local guidelines and industry best practices regarding disinfection, screening and testing, social distancing, and the use of masks and other personal protective equipment. Employers might also work to raise awareness of take-home exposure and the risk to vulnerable older family members or those with pre-existing conditions like diabetes that have been shown to elevate the risk of life-threatening complications associated with COVID-19.  Depending on the circumstances, maintaining social distance at home may be just as critical as maintaining social distance at work.

While a second wave of the pandemic may be unlikely, some level of infection, illness, and litigation is sure to be with us until there is a vaccine. The best protection against liability is making the safety of workers and customers paramount. But risk managers need to prepare for the worst and should also be reviewing the availability of coverage for employment related coronavirus claims, including take-home exposure. The employers liability exclusion under a general liability policy, for example, might exclude claims made by the family members of workers.

Planning and Risk Assessment for Returning to Work From COVID-19 Closures

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As businesses reopen and begin having their employees return to work, navigating the impacts of COVID-19 will undoubtedly be a challenge. Not only does keeping employees and customers safe take on new meaning, but sorting through rapidly changing guidelines can be overwhelming at best.

Adding to the complexity of returning to work after coronavirus-related closures, the Occupational Safety and Health Administration (OSHA), the Centers for Disease Control and Prevention (CDC) and various jurisdictional health departments are all providing guidance. To best keep employees safe and make sure businesses are heading down the right path of compliance in this new era, employers should focus on planning and structure reopening into four phases: 1. identify organizational responsibilities, 2. assess risk, 3. identify the controls needed to return safely, and 4. implement.

1. Identify Organizational Responsibilities

OSHA’s Infection Disease Preparedness and Response Plan (IDPRP) has presented a helpful approach for a range of organizations across the country. The plan helps emphasize and communicate basic infection prevention measures and establishes policies and practices to reduce the risk of disease transmission in the workplace. It also helps employers develop procedures for prompt identification and isolation of potentially infectious individuals, along with implementing safe work practices and workplace controls, such as engineering and administrative controls.

To start, identify the people within the organization who will lead the return-to-work effort. This team will provide daily updates on plan implementation, review company sick leave policies and procure and distribute Personal Protective Equipment (PPE).

During this phase, review your organization’s policies and procedures to ensure they are not creating obstacles for social distancing or staying at home when sick. Sick leave, quarantine policies and pay continuation should all be modified as necessary.

2. Assess Employee Risk Exposure to COVID-19

With a team in place, it’s time to dig deep into individual roles within the organization to understand the risks associated with various work sites and job tasks. The IDPRP helps organizations identify and quantify risks associated with infectious disease and helps to evaluate an employee’s exposure to COVID-19.

When evaluating the individual roles, identify the position, task and potential exposure based on criteria laid out in four exposure levels:

  • Low risk: Jobs that do not require contact with people known to be or suspected of being infected with COVID 19. Workers in this category have minimal occupational contact with the public and other coworkers. Office workers and telecommuters are examples of low-risk roles.
  • Medium risk: Jobs that require frequent or close contact with people who may be infected, but who are not known to have or suspected of having COVID-19. Higher-volume retail workers, restaurant servers and teachers are examples of medium-risk roles.
  • High risk: Jobs with a high potential for exposure to people known or suspected to be infected with COVID-19. Healthcare support personnel, janitorial personnel in healthcare and medical transport personnel are examples of high-risk roles.
  • Very high risk: Jobs with a very high potential for exposure to people or samples with known or suspected COVID-19 infection during specific medical, postmortem or laboratory procedures. Laboratory workers testing for COVID-19, pulmonary therapists and morticians performing autopsies are examples of very high-risk roles.
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3. Identify the Controls Needed to Return Safely

After completing a risk assessment for each role, identify specific PPE and administrative and engineering controls to reduce employee exposures. Clerical work, for example, is considered low risk and controls include social distancing and awareness training. A task such as stocking shelves where an employee has moderate exposure to others is considered a medium risk and nitrile gloves, cotton masks and other PPE are recommended. For tasks with high or very high exposure such as healthcare delivery staff, controls include nitrile gloves, facemasks, N-95 or better respirator, protective gown, booties, and head cover.

4. Put the Plan in Action

There are many organizational actions that can be implemented to further prepare to support and enforce the mitigation controls in place. Engineering controls to consider include installing high-efficiency air filters in HVAC systems, increasing a facilities dilution ventilation rate or installing physical barriers to control exposure. Post signs detailing cleaning and disinfecting procedures and social distancing requirements.

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Activate temperature stations and enforce an elevator policy.

For a successful return to work, it is essential to communicate and train employees regarding protections in the workplace. A communication plan should be identified during the organizational return-to-work planning phase, along with employee, supervisor and manager training. The workforce must be well-versed in recognizing symptoms, and everyone should know how to report possible exposure and what mitigation controls specific roles should be using. Your workers compensation carrier should be able to walk you through this process and help get you back to work. Tools and resources are also available on the OSHA and CDC websites.

Organizations that had clear pandemic response plans in place ahead of COVID-19 have had better access to PPE, quicker response times to daily changes in recommended controls, and more consistent ability to address employee concerns. If an employer does not currently have a response plan in place, however, it is never too late to get started. Preparing to return to work is a perfect time to establish the framework to make sure a business is not only ready to work during COVID-19, but also ready for unforeseen disasters in the future.