by avi meyerstein

Avi Meyerstein

Like everyone, the mining industry is eager for a coronavirus (COVID-19) vaccine. While mine health protocols have successfully prevented the uncontrolled spread of the virus at work, mining is not immune to the pandemic’s disruptions to work, family, school and the broader economy. With so much confusion about the vaccination process, timeline and workplace impact, it’s worth reviewing the latest.

Governments, researchers and pharmaceutical firms have been working in a hurry and trying many different approaches. As this edition was going to press, there were already 43 vaccines undergoing human clinical trials. More than a dozen vaccines are already in Phase 3 or have limited use approval.

Experts are cautiously optimistic that at least one vaccine could be approved as safe and effective by the end of the year or the beginning of next year. But there can be hiccups. One trial was paused recently when a patient had potential serious side effects. Once trials are complete, the U.S. Food and Drug Administration (FDA) will need time to review and approve the vaccines, even on an emergency basis.

How Long Will It Take to Distribute the Vaccine?
The short answer: Probably, at least several months, if not most of 2021. Having a working vaccine is only half the battle. Experts say we’ll need at least 70% of the U.S. population to be immunized in order to interrupt the chain of transmission. That will take some time.

The U.S. government intends to make vaccines available widely in the United States at little or no cost. It has invested $10 billion in research and development, effectively preordering at least 100 million doses of each of several different drugs from different companies. It is also working to boost manufacturing capacity for the ultimate vaccine, as well as for syringes, glass vials, PPE and other critical supplies.

Distribution is the final hurdle, and it won’t be quick or easy. First, it’s complicated. The federal government’s Operation Warp Speed is coordinating a plan for centralized distribution. But it involves partnering with some 64 state, local, tribal and territorial jurisdictions, each of which may have its own “microplan.”

Second, we should expect friction. Thought cloth face masks were contentious? Imagine how challenging it will be to reach consensus on widespread injections.

Third, even if a vaccine is quickly approved, at first there will likely be just 15 million to 20 million doses in early 2021. The Centers for Disease Control and Prevention (CDC) and drug makers estimate it could take until at least Labor Day 2021 to achieve mass vaccination.

Given limited quantities, distribution probably will occur in phases, giving priority based on people’s jobs (such as healthcare workers) or health conditions (such as those with high risk of severe infection).

Mining may have a leg up since it has been considered critical infrastructure. But how early in the process miners can access a vaccine may vary by state and may depend on whether their jobs involve high-risk exposures.

Once Available, Can Employees Be Required To Get It?
We still don’t know for sure. The Equal Employment Opportunity Commission (EEOC) has not yet answered this question specifically for COVID-19. But in 2009 guidance, it said under the Americans with Disabilities Act (ADA) and Title VII, some employees — such as those with religious or medical concerns — may be exempt from mandatory vaccination programs, even in the midst of a pandemic.

However, these exemptions have limits that may be tested by COVID-19. For example, under the ADA, even employees with medical conditions may not be exempt if coming to work unvaccinated would present a “direct threat” (i.e., significant risk of substantial harm even with reasonable accommodation), a standard COVID-19 may meet.

Similarly, under Title VII, an employer must seek an accommodation for an employee who objects to vaccination because of a sincerely held religious belief. However, there are limits. If the cost to the employer of providing an accommodation is more than “de minimis” (i.e., imposes more than a minimal cost), the employer can enforce the vaccination mandate. The costs to the employer can include increased safety or legal liability risks.

Of course, the breadth of COVID-19 vaccination and severity of the pandemic will surely

put these rules to the test and raise many more questions. How will unions and collective bargaining agreements factor in? Can an older employee claim age discrimination? Can companies be liable for not requiring vaccination? What happens with workers’ comp if people have side effects?
Stakeholders are going to want to know how the company will handle these complex issues. As the vaccine approaches, employers should give them thought and seek counsel.