The long-awaited COVID-19 vaccines are finally available, and distribution has begun in the U.S. Employers, in anticipation of the widespread availability of the vaccine, are beginning to inquire whether they can mandate employee vaccinations. Some employers have already begun the process of implementing vaccine policies, while others are still considering the best course of action.
According to the Equal Opportunity Employment Commission’s (EEOC) Dec. 16, 2020, guidance, requiring employees to receive COVID vaccines does not violate federal law. Employers can legally mandate employees receive the vaccine. However, some early polls suggest a significant number of people are hesitant to receive the vaccine so soon.
Non-mandated COVID-19 vaccine policy
For many reasons, employers might choose not to mandate vaccination. They might instead decide to continue to maintain a safe work environment but leave it up to individual employees to decide whether they want to get vaccinated.
What if you don’t mandate that your employees receive the vaccine, but your workplace has a COVID outbreak? This is certainly a possibility. The Occupational Safety and Health Administration (OSHA) standard is that employers have a general duty to maintain a safe workplace for employees. So far, from what we’ve seen from OSHA, employers are not likely to be held liable for the outbreak, unless there are egregious safety violations.
Some employers might decide to incentivize their workforce to receive the vaccine. Dollar General recently stated employees who receive the vaccine will get a bonus. This is an acceptable course of action, but it must not discriminate against people who might be part of protected exception groups. If an employee falls into this category, you might consider giving them the incentive anyway.
Mandated COVID-19 vaccine policy
Some employers may choose to mandate a vaccine. Those may include health care facilities or businesses such as hotels, restaurants, and retail, whose employees interact closely with the public.
Maybe you just want to eliminate the risk of an outbreak so you won’t have to worry about interrupting product or service delivery. If you decide to mandate all employees receive the vaccine, you will likely face a few hurdles. Mandating vaccination could create a culture problem or could create an immediate turnover issue. How you communicate to employees may help mitigate this problem. Also, be sure to implement a reasonable time frame to get vaccinated.
It’s prudent to require workers to get the vaccines from pharmacies or their personal health care providers. However, if you require confirmation of vaccination, make sure you don’t end up with documentation of employees’ health conditions, which may, for example, stem from answers to pre-screening questions.
The EEOC advises employers caution employees to provide proof of vaccination that does not include their personal medical information. You don’t want to be accused of making an employment decision — such as termination or demotion — based on your knowledge of an individual’s health condition.
Religious and medical exemptions
Employers who decide to mandate the vaccine will likely confront a situation in which an employee requests a waiver due to either disability or a sincerely held religious belief against vaccinations. Secular objections, such as being vegan or anti-vaccinations, also exist.
These objections are not protected by statute, but management should anticipate these issues and make reasonable accommodations, such as working from home or distancing employees from colleagues, to allow them to continue to function in their roles. If the exemption is not medical or religious, you do not have to attempt to reasonably accommodate the employee.
Consider the employees’ point of view
An additional consideration prior to making a policy is surveying your employees. It’s not necessary to tell them your decision will be based solely on their responses, but a survey can give you an idea of how they feel about it. It can also provide insights on employees’ literacy around the vaccine, which might help you communicate how you arrived at your decision. From an employee relations perspective, it’s wise to be proactive and empathetic.
From an HR standpoint, going down the path of mandating a vaccine can be precarious, unless you feel your business absolutely requires it. Most employers are better off making vaccinations a suggestion or encouragement. Even if you require your employees to receive the vaccine, you’re unlikely to get 100% compliance.
Establishing a COVID vaccination policy is not an easy road to walk and shouldn’t be managed alone. As more vaccines become available, make sure you evaluate all options and make smart decisions for your workforce.
*This article originally appeared in Memphis Business Journal and was written by Trevor Benitone, EVP and Chief Revenue Officer at Adams Keegan.