The arrival of the Coronavirus has led to an uptick in the submission of workers’ compensation claims. Safety National, a specialty insurance and reinsurance provider in Saint Louis, MO conducted a study showing high-risk industries such as healthcare, first responders (i.e., police officers, firefighters, and paramedics), public entities, retail, and food/beverage were the most prominent groups impacted.

Sedgwick, a global claims administrator located in 62 countries, processed more than 50,000 workers’ compensation claims in the US during March and November 2020. The average cost of those claims was $1,050, but certain individual claims cost $47,000 alone. These numerous claims lead to an increase in workers’ comp premiums year-over-year.

Considering these new cost implications, employers have the added pressure to mitigate risks in the workplace, reduce the chances of potential lawsuits and other liabilities associated with Covid-19 while protecting the safety and health of their employees, customers, and community. As a result, creating policies to enforce the vaccination of Covid-19 seems like the saving grace.

Since the distribution of the vaccine has begun in the US, hundreds of questions have surfaced from the employer community: “Can we, employers, legally require workers to get a Covid-19 vaccine? If so, when? And what is the best way to communicate this new policy to the workforce? And, what happens if an employee refuses to take the Covid-19 vaccine?” To help answer these questions, here is what the experts say.

Employers can legally enforce Covid-19 vaccinations

Many employers have a strong case for requiring employee vaccinations if their policies are job-related and are consistent with business necessity. However, the procedures must comply with the Americans with Disabilities Act (ADA), Title VII of the Civil Rights Act of 1964 (Title VII), and other workplace laws.

For example, employers can require vaccines before employees return to the worksite if the failure to be vaccinated constitutes a direct threat to other employees or clients in the workplace where the virus can be easily transmitted. However, according to the Equal Employment Opportunity Commission (EEOC), exemptions must be made for employees who cannot be vaccinated due to disabilities or religious beliefs.

In essential industries such as health care, public transportation, retail, food and beverage, businesses whose employees are at risk or present a threat to others will have more business reasons to enforce a Covid-19 vaccination. In low-risk industries where employees can work remotely or businesses are office-based, workers may find it easier to take a “personal-choice” stance.

When and how to inform employees

If the executive management in your company has resolved to require the Covid-19 vaccination as a condition to return to work, assuming you have legitimate reasons to do so, now is an excellent time to inform employees about the new policy. Even though the vaccinations may not be available for your group yet, it is an ideal time to strategize, develop, and roll-out a communication plan to share the news with your employees. This communication plan can include a series of email or video communications, updates to the employee handbooks, printed wall posters, pdf brochures, virtual town halls, and small group meetings via videoconferencing.

It is best to begin rolling out your communication plan as soon as you can. Many of your employees may have difficulty adopting and adhering to this new policy, so you will need time to win them over. During that period, educate them on the benefits of this new policy, and list all the potential consequences which can arise if this new policy is not followed. If possible, solicit the endorsement, support, and or participation of well-known governmental entities, experts, or specialists who can attest to the benefits of this new rule. If any issues, concerns, or fears arise from your corporate body, be sure to listen and address them respectfully and immediately.

What happens if an employee refuses to take the vaccine?

If an employee refuses to be vaccinated, an employer needs to evaluate the risk that objection poses, particularly if an employer mandates that employees receive a COVID-19 vaccine. The EEOC says that employers should determine four factors to define whether a direct threat exists:

• The duration of the risk.
• The nature and severity of the potential harm.
• The likelihood that the potential harm will occur.
• The imminence of the potential harm.

If an employee who cannot be vaccinated poses a direct threat to the workplace, the employer must consider whether a reasonable accommodation can be made, such as allowing the employee to work remotely or take a leave of absence.

What if an employer cannot legally enforce Covid-19 vaccinations?

If an employer does not have enough substantial evidence to show that Covid-19 vaccinations are necessary for the proper functioning of their company, they can still play a crucial role in preventing and slowing the spread of Covid-19 within the workplace. Employers can revise and enforce their current Covid-19 protocols to control the spread of the virus in their workplace and rapidly respond to any threat or infection that may break through. These plans should include social distancing practices, staggering employee shifts, and decreasing the degree of exposure to which employees interact with the public in person.

They should also accommodate the feasibility of accomplishing work remotely and isolate specific employees who must enter the office. Employers should also consider the level of Covid-19 disease transmission in their communities and provide sufficient PPEs to their employees, as well as cleaning supplies, shields, and barriers for employees who meet customers or the public. Then develop and execute daily screening procedures for employees and customers who come into the workplace. In case anyone should contract Covid-19 or be exposed to an infected individual, they should develop policies to address sick leave, separate sick employees from healthy employees, and educate employees on how to protect themselves at home and when commuting to and from work.

Finally, employers should create policies that support and promote business continuity without neglecting the health and safety of the employees, clients, and community. For more details and examples on methods and procedures an employer can execute in their business, please view the CDC’s recommendations for Covid-19 Business Response Guidance and COVID-19 Employer Information for Office Buildings. If you have any questions, please contact our HR department.