Distribution of the COVID-19 vaccine is well under way. We all hope this is a means to an end of social restrictions and making our way back to life as we once knew it. According to the CDC over 19% of the U.S. population is fully vaccinated. While more and more Americans are willing to get the vaccine, there are still many who remain hesitant. What does this mean for employers that want to get their employees back to work?

Employers have a duty to ensure that the health and safety of their employees is a top priority. According to the (EEOC), while employers can encourage or even require their employees to get vaccinated, they must comply with the American Disabilities Act (ADA), Title VII of the Civil Rights Act of 1964 and other workplace laws.  

When evaluating whether to mandate employees receive the vaccine, there are a few notable exceptions and circumstances that employers will need to consider in developing a policy:

Medical/Disability – Under the ADA, workers may opt out of receiving the COVID-19 vaccine for legitimate medical reasons. This includes an employee who may have a severe allergy to the vaccine or to an ingredient in the vaccine, immune system disorders, etc. In this circumstance, the employer would have to engage in good faith in the interactive process and, if necessary, provide a 鈥渞easonable accommodation,鈥� which may include allowing the employee to work remotely or instituting strict safety protocols relating to that employee that would not put the employee or others at risk.

Religion – If employers decide to require its employees to receive the COVID-19 vaccine they will need to be prepared to address and respond to objections based on 鈥渟incerely held religious beliefs.鈥� Personal beliefs such as veganism or ethical objections to the vaccine are generally not going to be considered a sufficient reason to refuse the vaccine. If an employee establishes and proves such a sincerely held religious belief the employer must evaluate the information provided and offer reasonable accommodations for the employee to continue working. The employer may require the employee provide written materials to support the religious belief. The employer may invoke a defense of 鈥渦ndue hardship鈥� as defined by Title VII, which generally means that providing the accommodation would result in significant difficulty or expense to the employer.

Human Rights/Bodily Integrity – An employer deciding whether to require its employees receive the COVID-19 vaccine will have to evaluate and weigh concerns of the employees鈥� rights to bodily integrity against the right of other employees and public safety. The employer must also consider the risk that an employee outbreak could result in shutting down the company, even temporarily.

Vaccine Identification – With more and more people getting vaccinated, the question arises about whether employees can or should 鈥渁dvertise鈥� their vaccinated status. Companies are already selling masks, bracelets and pins for people to wear to show they鈥檝e been vaccinated. Some rideshare drivers are displaying their vaccination card in the back seat for passengers. This raises the question of whether employers can require their front-facing employees to 鈥渁dvertise鈥� vaccination status.  For example, at a restaurant, seeing that a server is wearing an identifier that says 鈥淐OVID-19 VACCINATED鈥� might give guests comfort knowing the person serving them has received the vaccine. The EEOC COVID-19 guidelines do not address this issue. However, because the Health Insurance Portability and Accountability Act (鈥淗IPAA鈥�) prevents employers from disclosing protected health information about an employee, it is best for employers to make wearing such status notices voluntary and not mandatory.

In closing, if an employer chooses not to mandate the vaccine, there are programs or activities they can implement to encourage employees to get it. For example, they can offer incentives (cash, prizes, days off) or even make it a contest or game within the company. Requiring the vaccine can be a tricky situation and employers need to give it thought before making any definitive decisions. Either way, employers will have to know how to manage a potentially mixed workforce of those who have been vaccinated and those who have not. If you have any questions about instituting vaccine policies that comply with workplace and other applicable laws, contact.

Debora Verdier is a Senior Member at The Cavanagh Law Firm in Phoenix. She defends employers in all types of labor and employment disputes pending before the Equal Employment Opportunity Commission, state and federal courts, and private arbitrators.

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In record breaking time, a highly effective vaccine for COVID19 is being administered to frontline workers across the nation this week, highlighting the incredible importance private-public collaborations can play in solving humanity鈥檚 most pressing issues.  

Instead of the years it takes to develop a vaccine, Pfizer and BioNTech did it in less than a year. The companies collaborated with the U.S. government agencies and researchers worldwide in a race to get it done.    

鈥淒efeating this global pandemic would not even be possible without private-public partnerships,鈥� Mark Esser, a vice president at pharma giant , said at the recent Mid-Atlantic Summit of the U.S. Global Leadership Coalition, which is launching initiatives to respond to the coronavirus globally.

More than 1,000 political, business, military, and community leaders convened virtually for the summit to discuss the connections between global affairs and the region. With cases of COVID-19 reaching record levels in the U.S., policy, business, and global health leaders stated that America鈥檚 diplomacy and development programs are more critical than ever in responding to a global pandemic and protecting the health and safety of all Americans. Private-public partnerships will play an increasingly important role. 

Collaboration led to successful vaccine in record time

When Covid struck earlier this year, pharmaceutical companies began collaborating with government agencies, researchers, NGOs and others in a whirlwind to develop a vaccine and treatments. 

The first doses are now being administered this week to frontline workers and nursing home staff in Arizona and other states.  

鈥淚 tend to be an optimist, but with the success coming off the heels of the Pfizer results and the Moderna results, it does show scientifically and medically that the virus is defeatable. We can boost the immune system in people both the young and elderly to generate neutralizing antibodies that can stop the virus in its tracks,鈥� said Esser, whose company is a top contender to follow in Pfizer鈥檚 success. AstraZeneca in partnership with Oxford University has developed a vaccine that proved 90 percent effective in its Phase 3 clinical trials. 

U.S. companies first to produce successful vaccines 

Pfizer, which developed its vaccine in partnership with German biotechnology company, BioNtech, received authority last week from the Federal Drug Administration for distribution. Test results show the vaccine is 95 percent effective. 

Moderna is expected to receive emergency authorization this week for its vaccine. Doses could start rolling out as soon as the weekend. Moderna鈥檚 vaccine also is highly effective with a 94.1 percent efficacy rate. The FDA posted that indicate the vaccine not only protects individuals from contracting the virus but also may be able to reduce  transmission from person to person. 

Other companies racing to find treatments 

Pfizer, Moderna and AstraZeneca鈥檚 vaccines alone will not be able to meet global demand. Other companies also are working to develop effective vaccines and treatments. Among them: ImmunoPrecise Antibodies Ltd., Roche, Thermo Fisher Scientific, GlaxoSmithKline, Novartis, Tonix Pharmaceuticals, CSL Limited, Sanofi and Merck and Company. 

Operation Warp Speed central to vaccine success 

President Donald Trump last May announced (OWS), a public鈥損rivate partnership to accelerate the development, manufacturing, and distribution of COVID-19 vaccines, therapeutics, and diagnostics. The program has spent $12.4 billion so far with a goal to reach 300 million effective vaccine doses by 2021. 

That includes a nearly $2 billion contract with Pfizer and BioNTech if they can deliver 100 million doses. 

Esser predicts widespread distribution to the public at large could come as early as next spring. 

鈥淗opefully by this time next year things will maybe not be back to normal but a sense of normalcy,鈥� he said.

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