Yes, Michigan employers can mandate COVID-19 vaccinations — but it could bring problems

Adrienne Roberts
 
| Detroit Free Press
DETROIT – Ford Motor Co. has said it’s ordering a dozen ultra-cold freezers to store coronavirus vaccines globally when they become available. General Motors Co. plans to share information on vaccine distribution to its employees in the next few weeks.Meanwhile, crosstown rival Fiat Chrysler Automobiles said it has assembled a team that is studying the most effective approach to distributing vaccines to employees.It’s not just hospital systems preparing for the arrival of the COVID-19 vaccine. Companies ranging from the Detroit  Three automakers to restaurants are thinking about how they communicate to their employees about the vaccine, and if they should make it available, or even mandate it.Two COVID-19 vaccines produced by Pfizer and Moderna could be ready before Christmas, subject to regulatory approval. In Michigan, they will be available in limited quantities initially, with the first going to front-line health care workers, the state’s Chief Medical Executive Dr. Joneigh Khaldun said. Holiday shopping: Will COVID-19 vaccine shipments delay your holiday gifts?Streaming TV: Disney+ has a $1 price increase to $7.99 coming in MarchBut come January, state officials hope to expand the vaccine to more populations, with a general vaccine available to the public by late spring, Khaldun said.With companies like Ford and GM taking concrete steps to be prepared to distribute the vaccine, the moves raise questions about whether companies can require that employees get a vaccine.”Although the current COVID situation is new, this isn’t a new issue for employers,” said Maria Dwyer, a managing member of Clark Hill’s Detroit office and a labor and employment attorney. Dwyer said it has been well established under the law that employers can mandate vaccines.It’s complicated, especially with COVID-19But just because it’s legal doesn’t mean issues won’t arise, employment lawyers say. There are exemptions for employees with disabilities, such as an underlying condition that would prevent getting a vaccine, and religious beliefs, Dwyer said. She could also see problems for the employer if an employee took the vaccine and had an adverse reaction.”There are benefits, obviously, to having a workforce that’s immunized,” she said. “But employers should keep these three issues in mind, and make sure that there are exceptions under employment law to the rules that are established.” Then there are the considerations related to the broader narrative surrounding this vaccine in particular. The vaccine was developed at a rapid pace and became politicized at certain points. More than half of the U.S. population — 57% according to the most recent Gallup poll — are not willing to be vaccinated.Elisa Lintemuth, a member of Dykema’s labor and employment practice in Grand Rapids, Michigan, said while there is precedent for mandating vaccines, the question in her mind is: “Is it different than other vaccines?”She thinks it is. Lintemuth said the companies she’s talking to are more hesitant to implement a mandatory program for the COVID-19 vaccine because it is being approved for an emergency use authorization, a judgment issued by the U.S. Food and Drug Administration that makes a drug, device or test available before having all the evidence the agency would typically have.”There’s concern in the general public about whether the vaccine is safe because it has been fast-tracked,” Lintemuth said. “And so employers expect a little bit more pushback from employees than they might with a flu shot, for example.”Two of Michigan’s largest nonprofit hospital systems, Beaumont Health and the Henry Ford Health System, said they’re not planning on mandating the vaccine. In an interview with the Detroit Free Press on Wednesday, Beaumont Health’s Chief Medical Officer Dr. David Wood cited the emergency use authorization and the fact that the vaccine is new as the primary reasons for not requiring employees to get the vaccine.A path back to normalcyWhile some company leaders are expressing concerns, a much wider swath of companies are looking into making available, or mandating, the vaccine, Lintemuth said.Typically, health care providers, schools, day care centers and senior living centers may mandate vaccines, but with COVID-19, that group has widened to manufacturing and leisure and hospitality, two sectors where many employees can’t work from home.”Employers in almost every industry are trying to decide what they’re going to do about the COVID-19 vaccine,” she said. “The typical flu season doesn’t impact our economy and our society the same way that COVID-19 has, and everyone wants to get back to normal. And they see the vaccine as a way back to normalcy.”John Walsh, president and CEO of the Michigan Manufacturers Association, said, by and large, the industry hasn’t incentivized or mandated vaccines in the past. More: Ford aims to offer COVID-19 vaccines to employees, orders ultra-cold freezersMore: GM preps to unveil plan to workers around COVID-19 vaccine distributionCOVID-19 is different though because it affects employees’ ability to go to work safely. And in an industry where many employees can’t work from home, it ultimately affects manufacturers’ bottom lines.Walsh said there’s a debate among members about when herd immunity could be reached, and that drives some members to consider encouraging and incentivizing employees to get the vaccine, whether it’s through a small cash bonus or an extra day off. “We won’t be able to avoid controversy,” Walsh said, but he hopes it can be viewed as a positive move by companies and a way to avoid legal issues.In the heavily unionized manufacturing sector, a mandate would also need to be negotiated with the union, he said.Lintemuth said that’s in line with what she’s hearing most often from Michigan employers: They want to encourage or incentivize employees getting the vaccine, and they’re not ready to mandate it yet.Dennis Archer Jr., who owns multiple businesses and is a managing partner at Central Kitchen + Bar in Detroit, said he’s not planning on mandating the vaccine. But he said he’ll likely hold a Zoom call with a health professional for his 100 employees to share information about the vaccine.Archer Jr. said the pandemic has caused him to reexamine his approach to management and human resource considerations. For example, it’s usually larger employers who offer flu shots on-site for their employees. But should he start offering that?”There’s a cost to doing business, which is secondary to the health of the employees and their families,” Archer Jr. said. “But anything that helps stave off sickness and the spread of sickness, especially in the hospitality space, where you have sometimes thousands of guests coming in and out of the restaurant every week” should be considered.Working from home likely to continueFor the companies who have had their employees working from home throughout the pandemic, they’ll likely continue to do so, said Dwyer.”I think we’ll still see a slow return to the workplace,” she said. “Maybe those who agree to be vaccinated will be the first ones coming back.”Dwyer said cost concerns about who would pay for the vaccine, to the controversy that could arise out of mandating or incentivizing a vaccine, could further drive employers to examine whether employees really need to be back working in the office. “A lot of employers are finding really which jobs can be performed from home and which really need to be done in the office,” she said.Free Press staff writer Kristen Shamus contributed to this report. Contact Adrienne Roberts: amroberts@freepress.com.

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