Companies must develop a plan that is best for their company.
By Alexandra Walsh
Now that vaccines for the COVID-19 coronavirus are becoming increasingly available, many employers will have a strong case for requiring employee vaccinations. That is, as long as their vaccination policies have certain exceptions, are job-related, and are consistent with business necessity.
Legal experts from the Society for Human Resource Management (SHRM) say employers may require vaccines before employees return to the worksite if the failure to be vaccinated constitutes a “direct threat” to other employees in the workplace because the virus is rampant and easily transmitted in the workplace.
Exceptions must be made for employees who cannot be vaccinated because of disabilities or due to sincerely held religious beliefs. Employers do not have to accommodate secular or medical beliefs about vaccines.
Based on the findings of the U.S. Centers for Disease Control and Prevention, the Equal Employment Opportunity Commission (EEOC) has determined that COVID-19 meets the definition of a “direct threat.” During the pandemic, employers have relied on this guidance to justify asking employees more in-depth health-related questions and performing medical screening of employees before allowing them to report for work.
But the EEOC has not yet issued guidance for how it will view mandatory vaccine policies.
In addition, unionized employers probably will need to address collective bargaining obligations before companies communicate vaccination policies.
Individual states may also determine how the vaccines will be made available.
Employers may plan to follow the same policies they have concerning flu vaccines. In the context of flu vaccines, the EEOC has explained that employers, who are subject to the Americans with Disabilities Act (ADA), generally must provide reasonable accommodations to employees with disabilities that prevent them from receiving a vaccine.
Similarly, employers who are likewise subject to Title VII of the Civil Rights Act of 1964 must reasonably accommodate individuals who notify their employers of sincerely held religious beliefs that prevent them from receiving the vaccine.
Under the ADA, an employer requests information from the employee who is requesting accommodation, including the nature of the limitation or disability and the difficulty or issue that the vaccination would cause.
An employer may also require an employee to provide documentation from the worker’s medical provider to confirm the employee’s specific limitation or disability and the need for accommodation. But be mindful that an employer who asks for unnecessary evidence risks liability for denying a reasonable accommodation request.
What Are Others Doing?
According to a recent survey conducted by SHRM, more than half of organizations (55%) say they’re unsure whether they’ll require employees to receive a COVID-19 vaccination before returning to the workplace. Less than half of organizations (40%) won’t insist on a COVID-19 vaccination before an employee returns to the workplace.
For many companies, COVID-19 vaccinations are a matter of dollars and sense. In SHRM’s survey of employers, two-thirds (66%) say the COVID-19 vaccination is very or somewhat necessary for business continuity.
Many employers won’t need to do much arm-twisting in terms of vaccinations. SHRM’s research indicates nearly two-thirds (64%) of U.S. workers say they’re likely to get the COVID-19 vaccination once it becomes available. If an employer imposes a vaccine mandate, more than half (55%) of U.S. workers say they’re extremely or very likely to get the COVID-19 vaccine, according to SHRM’s research.
Almost one-fourth (24%) of workers, however, say they’d balk at getting the vaccine if their employer required it.
Developing a Policy
There are several reasons why having a policy that encourages vaccination, rather than a mandatory vaccine policy, is easier to administer for many employers.
Assessment: For one thing, COVID-19 vaccinations are a polarizing topic for many employees. What is welcome to employees in one company might be unpopular at another company. Certain employees may choose to no longer work for an employer—depending on whether a vaccination policy is adopted. This can result in business slowdowns and negative publicity.
The first phase then in developing a policy is one of learning. What are other companies doing? What do the company’s current employees think about vaccination?
Consider fielding an anonymous employee survey to gather feedback. From the results you can assess what percentage of employees plan on taking the vaccine, what incentives would most encourage them to do so, and gauge how many employees will likely claim disability and religious beliefs. Take care, though, that the survey does not raise unrealistic expectations or create liability.
Decision: Based on the assessment, the company can decide whether to follow current trends and encourage employees to get the vaccine or to require vaccination as EEOC guidance allows (with certain cautions).
If the company opts for mandatory vaccination, it can strategically choose to require it for certain groups and not others. For instance, it can require vaccination of employees whose job functions entail contact with the public, their being present at the worksite, or otherwise where the employee not receiving a vaccine would pose a significant risk of substantial harm to the health or safety of themself or others.
Incentives: Employers can consider offering incentives to boost the number of employees taking the vaccine. These could include paying for time off and expenses associated with getting the vaccination. Proactively offering extra PTO or a small discretionary bonus is a worthwhile investment, when compared to unexpected time off due to COVID-related illness and isolation.
Resources: Make sure staff handling human resources have the training to answer questions and work with employees to provide reasonable accommodations for needs related to disability or religious belief—such as transfers to positions with lower exposure and need for the vaccination.
Additional HR competencies that might be needed include handling leaves of absence; administering benefits; workers’ comp, including investigation and presumption of exposure at work; and revision of employment policies and processes.
Communication and Education: Employers should create a plan to educate everyone about the vaccine. This could include a company call to action (encouraging or requiring employees to take the vaccine) and offering incentives to take the vaccine.
At the same time, the employer should also provide information on seeking exemptions from taking the vaccine related to disability and religious beliefs and exploring alternative positions where not receiving vaccination is more acceptable.
Additionally, the employer might consider providing training on communication and conflict resolution with co-workers whose COVID-19 infection control actions are having a negative impact on health, safety, and the collective good at the company.
Employers should think through the particulars of how and why a vaccine program might look in their company.
This is true even if they choose to simply encourage the vaccine rather than mandate it as incentive plans can be tricky and must be handled in a nondiscriminatory manner that complies with applicable laws.
Ultimately, employers should make sure any practices or programs they roll out concerning COVID-19 vaccines are done the same across the board with their workforce and that they have an established way to handle accommodations in a consistent manner.