By John R. Carrigan, Jr. Cozen O’Connor
While early results suggest that both the Pfizer and Moderna COVID-19 vaccines are safe and highly effective in preventing COVID-19 illness, employers looking to a vaccine as a way to keep their workforce and customers safe may face an uphill battle. According to a survey conducted by the Centers for Disease Control in December 2020 , around 32% of U.S. adults do not intend to take a COVID-19 vaccine.
Subject to some exceptions, primarily objections based on medical or religious grounds (employees objecting based on a generalized “antivax” stance, or distrust about a certain vaccine, would be on shakier ground), employers generally may implement mandatory vaccination programs. And such vaccination programs have long been common in the healthcare field with respect to illnesses like measles and the flu.
While a policy requiring employees to take a coronavirus vaccine likely would be enforceable in most cases, it may not be appropriate or advisable for every workplace. Many employers, whether to avoid internal conflict, possible workers’ compensation claims arising out of alleged vaccine side effects, or potential bad publicity, may wish to take a more cautious approach – encouraging vaccination, but not requiring it.
But even without a hard mandate, employers taking action to drive up their employee vaccination rates face numerous potential legal risks. In hopes of avoiding litigation arising out of a voluntary vaccination program, employers might consider the following strategies:
Ensuring Low or No-Cost Vaccine Access
The federal government has already contracted to procure millions of vaccinations, and has said that all vaccine doses purchased with U.S. taxpayer money will be available to the American people at no cost. But employers should not assume this means vaccinations will simply be free to all employees.
At least some vaccination providers are expected to charge an administrative fee for the cost of injecting patients, a cost providers may seek to have reimbursed by the patient’s insurance company or, for uninsured patients, by a Provider Relief fund from the federal Health Resources and Services Administration.
To avoid confusion, and potential claims from employees who might end up with an unexpected bill, employers may want to reach out to their health insurance provider to discuss if and how vaccination (and any related administrative costs) will be covered, and whether covered employees will be asked to bear any portion of the cost. Also, given the federal government’s messaging about vaccine availability for “the American people,” employers mindful of potential national origin discrimination claims may also want to seek clarity on vaccination availability and costs for employees who are not US citizens.
Depending on what they hear from their insurers, employers may elect to cover some or all of their insured employees’ costs associated with vaccination. Employers should also consider anticipated costs related to any employees or key contractors not covered under the employer’s health plan.
Coordinated Education Campaigns
Many large employers already run annual campaigns encouraging employees to get flu shots every fall. And many of the strategies proven to be effective with such drives – for instance, multi-channel communications including text messages, email messages and presentations, as well as a visible buy-in from senior management – are also expected to deliver positive results when it comes to a coronavirus vaccine.
By now, many Employers have heard the most common employee objections to vaccination – for instance, a perception that the approval process may have been politicized or rushed, or concerns about an adverse reaction to the vaccine itself – and they should be prepared to address them when the time comes. But employers should try to avoid the appearance of politicizing a public health message. The most successful employee education efforts are likely to frame vaccines as being the best path back to something more like normal life, but without scolding employees who may be wary of taking a vaccine they may see as unproven.
As to those employees who come out in vocal opposition of a vaccine, employers should tread carefully and document any concerns over employee behavior or performance to avoid potential whistleblower and retaliation claims. And, even in non-union environments, employers should recognize their employees’ rights to engage in concerted activities under the National Labor Relations Act, such as circulating petitions objecting to the employer’s vaccination program.
Understand Timing Thresholds (and Potential Privacy Concerns)
In making any plans for a company-wide vaccination program, employers should recognize that their workforce will likely not all become eligible to be vaccinated at the same time, and that there may be a lag of six months or more between when the first and last employees can get their shots.
Different states (and, in California, different countries) make their own determinations as to which populations are eligible to receive for vaccination and when. based on factors such as occupation, age or whether the individual suffers from one or more medical conditions associated with increased coronavirus risk. For instance, California has recently announced that, beginning March 15, 2021, health care providers “may use their clinical judgment” to vaccinate California residents aged 16 to 64 with certain health conditions, such as cancer, pregnancy, chronic kidney disease or severe obesity. It is not yet certain just when the vaccine will be available to members of the public who don’t fall into a higher priority group, though government officials have suggested that may not be until the spring or summer of 2021.
Depending on what rollout criteria are in place in a particular jurisdiction, employee privacy rights may come in to play with respect to the timing of an individual’s vaccination. For example, if, in a particular state, the vaccine is made available to individuals who suffer from certain enumerated health conditions three months earlier than the general public, evidence of the date that a particular employee is vaccinated could inadvertently reveal private health status information which would have otherwise been unknown to her employer. In hopes of avoiding invasion of privacy claims, employers might consider various strategies, such as limiting the access to such employees’ vaccination status or asking employees to sign a waiver allowing their vaccination status to be shared with others.
Offer Stipends or Other Benefits to Vaccinated Employees
A department-wide pizza party for the group with the highest vaccination rate might not hold quite the same appeal as in years past, but employers may want to get creative with potential incentives to employees who elect to be vaccinated. This might include tangible benefits like gift cards, or other inducements like additional vacation time or flexible hours. For instance, the Los Angeles Fire Department has offered employees gift certificates for ride share services or for stays through Airbnb. While some economists have suggested that the simplest way to encourage vaccinations might be to simply offer cash payments, employers considering this option should consult with counsel to assess the proper treatment of such payments for tax purposes.
Another benefit to consider might be offering employees paid time off specifically to get the vaccine. While some employers have offered employees a few hours of PTO in past years to get a flu vaccine, employers might consider offering more here – early reports suggest that coronavirus vaccines may be more painful to take than a regular flu shot, and may have short-term side effects, such as headaches or flu-like symptoms, that could cause some vaccinated employees to miss work.
Require Vaccination to Work On-Site
Once a vaccine is available, some employers may consider requiring proof of vaccination status for employees who wish to return to the office, while requiring non-vaccinated employees to continue working remotely. While there may be safety benefits to such a strategy, it could open an employer up to failure to accommodate claims from employees who are not being vaccinated for reasons associated with their religion or disability.
On-Site Vaccination Clinics
In past years, some employers may have run on-site mobile flu vaccination clinics in the company parking lot. In theory, this same approach could be effective in encouraging employees to take a coronavirus vaccine.
But the logistics of such an approach are likely to be more complicated with a coronavirus vaccine, in part because certain vaccines must be stored at very low temperatures which are beyond the capacity of most freezers. Employers considering working with an on-site clinic should reach out well in advance to determine whether this approach might be feasible for their workplace, and before retaining such a clinic, should carefully review any contract language to ensure appropriate controls will be in place and staff have been adequately trained. Employers may also want to determine whether any indemnification provision would insulate them from liability claims based on any improperly administered injection or other errors by the clinic.
Early Engagement with Labor Unions
Any mandatory vaccination policy would likely constitute a required subject of collective bargaining under the National Labor Relations Act, as would other vaccine-related policy changes which would impact employees’ terms and conditions of employment. But, even absent a possible bargaining obligation, management might benefit from early communications with their union counterparts or labor/management committee to assess any concerns and discuss potential joint communications.
Set Aside Administrative Resources in Advance
Both the Pfizer and Moderna vaccines require two separate shots, to be taken several weeks apart from each other. Some people will get the first shot, but forget the second – others may mistakenly take a first shot of one vaccine, and a second shot of another.
To avoid these, and other potentially preventable concerns, employers may want to go ahead and dedicate administrative staff and resources specifically to managing the logistics of a vaccination campaign. The employer might also want to designate a committee to review laws and guidance at the state, federal and local level addressing vaccine issues, and to prepare appropriate notices and revised polices (for instance, revising quarantine protocols to delineate separate rules for employees who have and have not been vaccinated) as needed.
An earlier version of this article appeared in Law360.
John R. Carrigan, Jr. is a member in the Labor and Employment Department at Cozen O’Connor. He practices out of the firm’s Santa Monica office.
With the new year now fully underway, the Century City Bar Association is excitedly looking forward and hoping for a sooner-than-later return to our usual in-person networking events and continuing education series. In the meantime, as most of us continue working entirely remotely and observe distancing protocols, the Century City Bar Association is planning a robust slate of virtual speakers, MCLE offerings, and networking opportunities to engage our membership and keep us connected.
Two weeks ago, Jessica C. McElfresh, Esq., presented on the ins and outs of cannabis law and regulations in her talk entitled Get Up To Speed On the Ethics of Weed.
On March 18, 2021, Phillip Maltin, Esq., will speak about his tips for recognizing dishonesty in a number of settings, from mediation to the workplace, in his presentation I Can Read You: How to Identify Liars in the Workplace, and the Legal Action You Can Take Against Them.
On April 15, 2021, Barry Schreiber, Esq. will present Working Tools For Eliminating Cultural Bias.
Links to register for these, as well as updated information on virtual networking events and other news, can be found within this newsletter, on our website, and on our Facebook and LinkedIn pages. We look forward to seeing you all virtually until we can be in person once again, and invite you to let us know if there is a speaker or topic you would like to see on our calendar of events. Email suggestions, as well as newsletter article proposals or interest in serving on our Board of Governors, should be sent to LWerderitch@ggfirm.com.
Be safe and be well.
Lori Werderitch, President
Lori L. Werderitch
By Nicole Clark, Esq., Trellis Research
A Lawsuit Pandemic? The Oncoming Waves of Coronavirus Litigation
The past two decades have shown us that catastrophes and economic downturns can unleash tidal waves of lawsuits. After the attacks on September 11th, we witnessed a flood of filings that tested the limits of real estate insurance and health coverage policies for businesses and first responders at Ground Zero. Similarly, the Great Recession brought lawsuits against major financial institutions, claims alleging investors and regulators had intentionally been misled for years. What legal actions will the coronavirus pandemic bring?
Coronavirus Enters the Courts
As of May 19, 2020, 1,155 coronavirus-related complaints have been filed in federal and state courts across the United States. New York and California lead the nation with the most filings. However, unlike the Great Recession or the attacks on 9/11, the legal implications for the COVID-19 pandemic are different in their breadth and in their scale. These implications are raising new questions about the meanings of negligence, causation, and liability, terms that had previously been defined and adjudicated in contexts of normality. But what happens when a pandemic creates a new normal?
The types of lawsuits sparked by the coronavirus pandemic can be grouped into three broad categories:
- Labor and Employment Claims: Employees have started filing personal injury lawsuits and workers compensation claims against employers, alleging unsafe working conditions during the coronavirus outbreak. The plaintiffs range from nurses to retail workers. They claim that they contracted COVID-19 because their employers failed to fulfill their duty of care; they did not provide workers with protective gear, enforce social distancing measures, or adequately sanitize the workplace. Defendants have responded by deflecting legal liability, claiming that it is impossible to determine exactly how someone contracted the virus. (How can one show that the lack of personal protective equipment caused an employee to have contracted the virus? That the harm arose out of workplace activity?)
- Business to Consumer Claims: Consumers have demanded that companies ranging from airlines to gyms to ticket vendors issue refunds for coronavirus-related closures and cancellations. In a series of class action lawsuits, consumers have alleged that these businesses violated contractual agreements and consumer protections by continuing to charge membership fees for services that have been temporarily halted. As these cases move through the courts, plaintiffs will have to navigate the small print of those contracts, some of which include arbitration agreements or pandemic-related provisions.
- Business to Business Claims: A variety of businesses have filed lawsuits against insurance companies, claiming they have sidestepped their coverage obligations for business interruption policies. These lawsuits are testing the wording of these policies, which were written to cover direct physical loss or damage. According to the insurance companies, the policies were designed to address losses due to a fire or a burst water pipe—not a communicable disease. In fact, after the SARS outbreak, many insurance policies included provisions to exclude any fallout or losses from a virus.
But even this breakdown feels like a broad simplification. It overlooks all of the wrongful termination, employment discrimination, and federal WARN Act claims filed by laid off employees. It does not account for all of the prison confinement condition complaints or stay-at-home order challenges, by far the two largest types of claims filed thus far.
A Shifting Trend: The Effects of Coronavirus on Filings in Los Angeles County
Still, we can take a closer look at these categories. The largest number of coronavirus-related insurance claims have been filed in California. In fact, insurance claims represent fourteen percent of all coronavirus-related filings across the state; one of the state’s largest categories of filings, just behind stay-at-home challenges. A majority of these claims are for declaratory judgment under the Civil Authority Coverage provision of their ‘all-risk’ insurance policies. A large number of these cases have been filed in the Superior Court of Los Angeles, a venue that has been historically dominated by personal injury and employment claims.
The percentage of insurance-related claims filed in the Superior Court of Los Angeles has experienced a downward trend since 2011. To give these figures some perspective, consider San Francisco County. Broadly speaking, the total quantity of insurance claims filed in the Superior Court of San Francisco is much lower than in Los Angeles. However, insurance claims have represented a larger percentage of the total number of the venue’s filings. Despite these differences, the Superior Court of San Francisco has also witnessed a steady decline in its percentage of insurance-related claims. As hotspots for recent coronavirus-related litigation, we can expect to see changes in the trends over the next year.
This Is Just the Beginning
The number of coronavirus-related filings will continue to rise for the next two to three years —perhaps the next decade. Uncertainty abounds in terms of how judges will handle these cases. This uncertainty is compounded by the decisions of public policymakers, who are working to reconfigure the legal landscape. California Governor Gavin Newsom, for example, issued Executive Order N-62-20, which mandates that “[a]ny COVID-19-related illness of an employee shall be presumed to arise out of … [their] employment for purposes of awarding workers’ compensation benefits.” Other states have already started imposing immunity measures for health-care institutions and nursing homes, measures designed to protect them from liability for coronavirus-related deaths. At the federal level, Congress is contemplating its own liability shields for businesses, with Senator Mitch McConnell advocating for broad liability protection as part of any future coronavirus legislation.
What is clear, however, is that the rulings from the first wave of coronavirus-related cases have the potential to break new legal ground. The lack of legal precedent for catastrophic events and the massive scale of the coronavirus pandemic will bring together case law and legal concepts (such as force majeure) that have not received widespread attention in decades.
The few rulings that have already trickled through the courts evidence narrow interpretations of legal matters. When asked, for example, whether or not COVID-19 particles can cause direct physical loss or damage to a property, one federal judge in New York ruled no, stating that the coronavirus “damages lungs. It does not damage printing presses.” So far, it looks like the potential for new legal ground remains just that—a potential.
Nicole Clark, Esq., is the CEO and co-founder of Trellis Research . She is a Business litigation and labor and employment attorney.
Trellis is an AI-powered legal research and analytics platform that makes trial court rulings searchable, and provides insights into the patterns and tendencies of opposing counsel, and state court judges.
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