ILMA Compoundings - October 2020 - 42

An employer, thus, needs to ensure that it has an objective
rationale for requiring flu shots that is tied to employees'
job descriptions. The employer then must publish a policy
explaining its expectations and how an employee may
request an accommodation or exemption. The policy also
should state that there will be no negative effects for those
employees who request an accommodation or exemption.
Then, apply the policy consistently, remembering to safeguard the privacy of employees' medical information.
As to the "objective rationale," an employer must reasonably believe that an employee's ability to perform essential
job duties will be impaired by a medical condition or that
the employee's medical condition will pose a significant
risk of substantial harm to workplace health or safety that
cannot be eliminated by reasonable accommodation.
Now, let's turn to mandating COVID-19 vaccinations.
Until the EEOC publishes specific coronavirus guidance, its
ADA position on mandatory flu shots is the best road map
at this time for evaluating whether to require employees to
obtain a COVID-19 vaccination. Because of the effects of
the COVID-19 pandemic, the EEOC's guidance regarding
workplace COVID-19 screenings, and its guidance on
mandatory flu shots, employers likely will have the right to
require workers to be inoculated with an approved COVID19 vaccine, subject to the same caveats I discussed above for
mandatory flu shots, including for anti-vaxxers.
In considering mandatory vaccinations, for either the
flu or COVID-19, be cautious not to confuse the concept
of inoculations with the current permissible practices of
COVID-19 temperature checks, symptom screening and
testing. For reference, seasonal flu does not necessarily meet
the EEOC's "direct threat" test to justify screening or testing
in the workplace.
So, should I require employee flu shots? As my discussion
above suggests, implementing a mandatory vaccine program will require considerable time, including dealing with
employee accommodation requests. Employers also need
to consider who pays for the vaccine. Many employers and
insurers currently subsidize employee flu shots and provide
them on-site or direct employees to a provider, such as a
nearby pharmacy. However, the cost and allocation of a
COVID-19 vaccine is uncertain at this time.
Other related questions include how employees should
prove they received the vaccine, whether to have employees
get re-vaccinated if the vaccine eventually wears off, and
whether employees working remotely need to get vaccinated.
Lastly, there is always the question of potential liability
if an employer mandates a vaccine and an employee has a
severe reaction to the vaccine and then argues that he or
she would not have been inoculated but for the employer

OCTOBER 2020

| COMPOUNDINGS | ILMA.ORG

requiring it. While it is a difficult question to answer at this
time, employers cannot ignore this possibility.
Like so many workplace issues, the employer needs
to engage in risk balancing. For employers that cannot
effectively socially distance and or that have a number of
high-risk employees, a vaccination mandate for the coronavirus probably makes sense to minimize the risk of a
COVID-19 outbreak. For other employers, the risks simply
may outweigh the benefits. No one knows when a reliable
COVID-19 vaccine may be available, but employers should
be prepared to respond when that happens.
As always, check with your local counsel with specific
questions or issues. I hope to see you at ILMA's virtual
Annual Meeting!
Leiter serves as general counsel to ILMA, representing
the Association since 1981. He may be reached at
202-466-6502 or jleiter@bmalaw.net.

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ILMA Compoundings - October 2020

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