Question:

Can I (an employer) mandate that my employees receive the COVID-19 vaccine once it’s available to them?

Answer:

Generally speaking, employers can mandate COVID-19 vaccination of their employees if the failure to be vaccinated would create a direct threat to other employees, because of the high risk of transmission of the virus in the workplace. However, all vaccination policies should have certain exceptions and should be job-related and consistent with business necessity. But as you can imagine, this is a loaded question and you should always consult with an attorney before making the call for your organization.

You Need to Create A Formal Vaccination Policy.

Before you start asking your employees to get vaccinated (you know, once it’s available to them), you need to create a formal vaccination policy. This will ensure that messaging is the same across the board, which is important. When messaging is inconsistent or only certain employees are asked to be vaccinated (for example, only requiring employees above 40 to be vaccinated), you run the risk of a discrimination claim being made against you. And obviously, we want to avoid that. This goes for actual implementation of the policy as well! All employees should be treated the same or as similarly as possible, unless they qualify for an accommodation (more on this later).

Your vaccination policy should include:

• Information on why the vaccine is job-related and consistent with business necessity;
• Whether or not vaccination is required or highly encouraged;
• If vaccine is required, the time window for when an employee must be vaccinated;
• Information on accommodations or exceptions to the vaccination policy;
• Information on whether or not your organization will be facilitating the vaccinations, or if not, resources for how employees can receive their vaccinations;
• Information regarding who will pay for vaccinations (speak to a lawyer about this before implementing!);
• A statement that employees will be paid for time off to receive their vaccinations; and
• Contact information should employees have questions about the policy.

This policy needs to be distributed in a way that you can ensure all employees are made aware of it. In other words, it shouldn’t be buried in a bunch of other routine information or paperwork, this information should receive its own dedicated messaging. Supervisors should follow up with any employee that hasn’t acknowledged receipt to make sure they understand the policy and to gain their acknowledgment for their personnel file.

Make Sure Your Policy Is Job-Related and Consistent with Business Necessity.

Whether or not a mandatory vaccination policy is job-related and consistent with business necessity will be a context specific question. If your workforce is able to work entirely remotely, a mandatory policy may make less sense. However, for high risk industries or industries that require on-site work or business travel, a mandatory policy may make more sense.

Employers should also be mindful of the fact that the Occupational Safety and Health Act (or “OSHA” as it’s commonly referred to) requires employers to provide a safe and healthy work environment. Failure to take vaccination seriously once it’s widely available to the public may lead to increased liability for employers, so this should be taken into consideration when determining business necessity.

Exceptions Every Mandatory Vaccination Policy Should Include.

There is a long history of requiring accommodations for vaccinations. The EEOC has previously explained that, “an employee may be entitled to an exemption from a mandatory vaccination requirement based on an ADA disability that prevents him from taking the influenza vaccine.” This explanation was included in the EEOC’s “Pandemic Preparedness in the Workplace and the Americans with Disabilities Act” which does state that it is applicable to the coronavirus pandemic, meaning once the COVID-19 vaccine is widely available, we can expect it to follow similar workplace guidelines. There’s also legal precedent for religious exemptions through Title VII of the Civil Rights Act of 1964. Through this act, employers that are subject to Title VII of the Civil Rights Act of 1964 must reasonably accommodate individuals who notify them of sincerely held religious beliefs that prevent them from receiving the vaccine.

So the takeaway here is that, while employers may create mandatory vaccine policies, there should be exceptions for employees who cannot be vaccinated because of disabilities (medical accommodation) or due to sincerely held religious beliefs (religious accommodation). In the event that an employee does request an accommodation, employers should speak to their attorney about their options in addressing the request.

There are no exemptions for secular or health-related beliefs, meaning those with beliefs regarding the effect of vaccines on the body are not entitled to an exemption solely on the basis of those beliefs. In fact, in 2017 one federal court grappled with this topic and found that the plaintiff’s (the person seeking to avoid vaccination) “beliefs did not qualify as religious because he ‘simply worries about the health effects of the flu vaccine, disbelieves the scientifically accepted view that it is harmless to most people, and wishes to avoid this vaccine.’”

Wrapping It All Up….

We’re hoping that we’re all nearing the end of the COVID-19 tunnel, but widespread vaccination will be key for ensuring this happens. As an employer, you play a pivotal role in encouraging employees to get vaccinated when possible. Plan for the nearing future where your voice will matter and your organization will need to have a vaccination policy in place. You will thank yourself for being proactive when that time comes!

If all of this is overwhelming to you, we get it. All of the COVID-19 information is burning people out, so let us step in for you! We’ve created a Vaccination Preparedness Bundle for our clients. If you have any questions about this article or our Vaccination Preparedness Bundle, please send an email to bertie@inbetterwetrust.com so we can connect you with a team member.