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What Employers Should Know About Vaccination in the COVID-19 Era

Posted by Kelly Thoerig Wednesday, September 16, 2020

$13.1 billion: That’s how much the 2019-20 influenza season likely cost employers in lost productivity, according to outplacement firm Challenger, Gray & Christmas. Amid a global pandemic, this year’s flu season could be even more damaging.

With health systems already under enormous stress from COVID-19, employers need to protect both employees and bottom lines from influenza in an attempt to prevent what some in the media and elsewhere have termed a “twindemic.” As this year’s flu season kicks off, however, and as public health officials race to develop a viable COVID-19 vaccine, an important question has arisen: Can employers require staff to be vaccinated against the flu and COVID-19?

A Different Kind of Flu Season

According to the Centers for Disease Control and Prevention (CDC), it is likely that both the coronavirus and the influenza virus will be circulating among the US population this fall and winter. Many COVID-19 preventive measures — including wearing masks in public, practicing social distancing, and ensuring hand hygiene — could also help to limit or slow the spread of influenza.

Still, even a relatively mild flu outbreak can create a public health challenge. The CDC estimates that as many as 740,000 people were hospitalized with influenza and as many as 62,000 people died during the 2019-20 season. What’s more, many symptoms of the flu and COVID-19 are similar, making it hard for sick individuals and health professionals to distinguish between the two. It is also possible for a person to simultaneously have both influenza and COVID-19.

For these and other reasons, the CDC recommends that — with rare exceptions — all Americans 6 months and older be vaccinated against the flu, ideally before the end of October.

Vaccine Mandates Permissible

Although flu vaccines have been available for decades and are generally considered safe and effective, it’s unclear when a COVID-19 vaccine will be widely available and any potential side effects it may have. Still, employers need to think ahead while also considering how to encourage and facilitate flu vaccination among employees and their families now.

But can employers do more than simply encourage vaccination?

The short answer is yes — employers can theoretically mandate that employees receive vaccines for both the flu and COVID-19 as a condition of employment. Many hospitals already require that health care workers are vaccinated against some illnesses; in some jurisdictions, it’s required by law. Many states also require that students receive a bevy of vaccinations in order to attend public or private K-12 schools. These trends would suggest that hospitals, schools, retailers, and others businesses that interact with the public can and likely will require their employees to receive the COVID-19 vaccine when it becomes available.

Outside of health care, however, such mandates have not been commonplace — and though a mandate may pass legal muster, it may not be the best idea. After all, employers must balance the need to create safe, healthy, and productive workplaces against employees’ rights, which may be especially difficult to accomplish amid the pandemic.

Accommodating Employees

Even if employers impose blanket vaccination requirements, they must still make accommodations for those with other health conditions or drug interactions that make vaccines dangerous and for individuals who object to vaccination on religious, moral, or ethical grounds. Such accommodations could include removing employees from physical workplaces or otherwise ensuring they do not present a health risk to coworkers and customers.

For most employers, a more advisable course of action may be to strongly encourage and facilitate flu vaccination. Under “normal” circumstances, many employers would be launching internal communications campaigns to urge their staff to get a flu shot in the coming weeks, with some going a step further and setting up onsite clinics to deliver vaccines in the workplace.

Facilitating such clinics may not be feasible during the pandemic. Employers, however, can ensure that employer-sponsored health insurance plans provide coverage or directly pay for such vaccines, which are readily available via doctors’ offices, pharmacies, and other sources.

However an individual employer approaches this issue, it’s important for them to have a plan that addresses employee objections, appropriate accommodations, and other issues. Employers should also ensure that decisions on vaccination programs are made with the input of key internal stakeholders, including risk management, human resources, legal, communications, and environmental, health, and safety teams.

An unprecedented health crisis presents many challenges for employers. But it’s still important to keep employees safe, healthy, and working. Promoting vaccination can support employees’ well-being and better ensure productivity for employers.

Kelly Thoerig

Managing Director, Employment Practices Liability Coverage Leader