ARTICLE
In follow up to member questions regarding employer mandates of the COVID-19 vaccination, INARF requested additional information from Indiana Department of Health (IDOH). IDOH indicated they do not plan to issue any specific guidance. They recommended that employers review the EEOC's recent guidance and to consult with legal counsel on any legal or ethical considerations. IDOH's stance continues to be that the state will not mandate this vaccine. if you have questions regarding the vaccine, send them to Sarah Chestnut at sarah@inarf.org to be submitted to IDOH. IDOH shared the resources below for employers' reference: Indiana Department of Health Vaccine Information and Planning webpage EEOC Guidance The National Law Review published an article entitled EEOC Publishes Guidance on Employer Mandatory COVID-19 Vaccination Policies, including the following key takeaways: 1. Employers can require that employees receive the COVID-19 vaccine (once it is available) as a condition of returning to, or remaining in, the workplace. 2. However, employers must attempt to accommodate employees who, due to medical disabilities or sincerely-held religious beliefs, decline or refuse to receive the vaccine. 3. If an employer determines, based on objective evidence, that the presence of an unvaccinated employee (i.e., one who declines or refuses to be vaccinated against COVID-19 for disability or religious reasons) presents a direct threat to the health and safety of persons in the workplace that cannot be reduced or eliminated through a reasonable accommodation, the employer can exclude the employee from the workplace. 4. When the employer excludes an unvaccinated employee from the workplace due to the perceived direct threat presented by his or her presence in the workplace, the employer may not automatically terminate the employee, but instead must assess whether other accommodations, such as remote work, can be provided. The Network for Public Health Law Guidance: COVID-19 Vaccine and Employer Mandates Question: Can public and private sector employers mandate employees obtain a COVID-19 vaccine authorized by FDA via an EUA? Response: Most likely yes. … Whether individuals may refuse an EUA vaccine, however, is distinct from whether an EUA vaccine may be mandated as a condition of continued employment. There is currently no express limitation preventing employers from mandating a vaccine distributed pursuant to EUA, rather than one issued through a full BLA, provided (1) anti-discrimination protections are assured and (2) any applicable state laws or exemptions are honored. As well, FDA authorization of a COVID-19 vaccine does not automatically assure approval of its use via CDC’s Advisory Committee on Immunization Practices (ACIP). ACIP completes its own safety review of vaccines, providing official federal vaccine recommendations that stakeholders, including state public health agencies, follow closely. If FDA and ACIP disagree on the utility and safety of a specific vaccine, employees may have a stronger legal basis to counter a vaccine mandate. In sum, key determinants whether a COVID-19 vaccine is mandated among HCWs include (1) proof of the vaccine’s efficacy and safety; (2) specific authorization via FDA; (3) review and recommendations from ACIP; (4) additional elaborations from EEOC or OSHA; (5) state- or local-based emergency orders to issue mandates; and (6) emerging guidance from public and private sector employees as to the perceived or actual need of widespread vaccination among employees to assure their safety as well as patients and staff.
In follow up to member questions regarding employer mandates of the COVID-19 vaccination, INARF requested additional information from Indiana Department of Health (IDOH). IDOH indicated they do not plan to issue any specific guidance. They recommended that employers review the EEOC's recent guidance and to consult with legal counsel on any legal or ethical considerations. IDOH's stance continues to be that the state will not mandate this vaccine.
if you have questions regarding the vaccine, send them to Sarah Chestnut at sarah@inarf.org to be submitted to IDOH.
IDOH shared the resources below for employers' reference:
Indiana Department of Health Vaccine Information and Planning webpage
EEOC Guidance
The National Law Review published an article entitled EEOC Publishes Guidance on Employer Mandatory COVID-19 Vaccination Policies, including the following key takeaways:
1. Employers can require that employees receive the COVID-19 vaccine (once it is available) as a condition of returning to, or remaining in, the workplace.
2. However, employers must attempt to accommodate employees who, due to medical disabilities or sincerely-held religious beliefs, decline or refuse to receive the vaccine.
3. If an employer determines, based on objective evidence, that the presence of an unvaccinated employee (i.e., one who declines or refuses to be vaccinated against COVID-19 for disability or religious reasons) presents a direct threat to the health and safety of persons in the workplace that cannot be reduced or eliminated through a reasonable accommodation, the employer can exclude the employee from the workplace.
4. When the employer excludes an unvaccinated employee from the workplace due to the perceived direct threat presented by his or her presence in the workplace, the employer may not automatically terminate the employee, but instead must assess whether other accommodations, such as remote work, can be provided.
The Network for Public Health Law Guidance: COVID-19 Vaccine and Employer Mandates
Question: Can public and private sector employers mandate employees obtain a COVID-19 vaccine authorized by FDA via an EUA?
Response: Most likely yes.
…
Whether individuals may refuse an EUA vaccine, however, is distinct from whether an EUA vaccine may be mandated as a condition of continued employment. There is currently no express limitation preventing employers from mandating a vaccine distributed pursuant to EUA, rather than one issued through a full BLA, provided (1) anti-discrimination protections are assured and (2) any applicable state laws or exemptions are honored.
As well, FDA authorization of a COVID-19 vaccine does not automatically assure approval of its use via CDC’s Advisory Committee on Immunization Practices (ACIP). ACIP completes its own safety review of vaccines, providing official federal vaccine recommendations that stakeholders, including state public health agencies, follow closely. If FDA and ACIP disagree on the utility and safety of a specific vaccine, employees may have a stronger legal basis to counter a vaccine mandate.
In sum, key determinants whether a COVID-19 vaccine is mandated among HCWs include (1) proof of the vaccine’s efficacy and safety; (2) specific authorization via FDA; (3) review and recommendations from ACIP; (4) additional elaborations from EEOC or OSHA; (5) state- or local-based emergency orders to issue mandates; and (6) emerging guidance from public and private sector employees as to the perceived or actual need of widespread vaccination among employees to assure their safety as well as patients and staff.