There’s a real possibility the United States will approve a COVID-19 vaccine in the coming months, but debate and uncertainty continue about when it will become public.
When it happens, you’ll face the question of whether to require employees to be vaccinated, and you need to start planning now. Many of you confront a similar question each year when you contemplate requiring employees to get a flu shot. Given the speed of the COVID-19 research process, you should create a plan before a vaccine is approved.
Mandate the Vaccine?
Employers with a history of requiring flu vaccines in the workplace have likely already established a baseline for how they will approach the COVID-19 vaccination question. Most important, barring a state law prohibition on mandatory vaccines, you can require vaccines but must account for employees who need reasonable medical or religious accommodations.
You may rely on the same framework you use for flu shots to assess whether to mandate a COVID-19 vaccine. In addition, state law may require some employers (notably, healthcare facilities) to mandate employee vaccinations to protect the public. Many states require vaccinations for chickenpox, measles, tuberculosis, and other communicable diseases.
Critical to establishing a mandatory vaccine program are the following considerations:
Communication. If you decide to mandate the vaccine, think through and communicate the reasons. Update any job descriptions with essential functions (e.g., travel, customer-facing positions, close interaction with other employees) that might compel a mandatory vaccination.
Exceptions/accommodations. As with all workplace programs, you should expect and prepare to make exceptions and accommodations. Although they require a case-by-case analysis, you should strive to establish consistent criteria for making the determinations. Additionally, in the case of any exception or accommodation, you also must plan for safety measures to protect the excepted employee and the remainder of the workforce.
Cost. If a COVID-19 vaccine isn’t fully funded by health insurance, you should plan to bear the cost for employees.
Record keeping. Keep in mind that employee medical files must be kept separate from general personnel files. Additionally, medical information about employees should be treated with the appropriate confidentiality.
Safety. Mandating a vaccine, in and of itself, doesn’t satisfy your general duty to provide and maintain a safe working environment for employees.
Location. You should decide where employees will receive the vaccination.
Efficacy. Consider whether a vaccine is effective. You may need to refer to guidelines issued by the U.S. Centers for Disease Control and Prevention (CDC) and state or local health departments.
Workers’ compensation. Could an employee collect workers’ comp or otherwise sue for side effects from the vaccine?
Vaccine choice. Which vaccine should you require if more than one becomes available?
Vaccine priority. If there’s a shortage of vaccines, should certain employees receive priority under your mandate? Be sure your decision isn’t based on discriminatory or impermissible considerations under the law.
What if Employees Refuse Vaccination?
Again, employers that require flu shots should use the same procedure for dealing with flu shot exemptions to determine whether an employee’s refusal of a COVID-19 vaccine poses an undue safety burden on other workers and/or the public.
You should also give thought to safety precautions to minimize any risk for, or created by, unvaccinated employees. Consider other actions taken to mitigate the spread of COVID-19. In addition to mandating the use of personal protective equipment (PPE) such as gloves or masks, you may be able to use social distancing measures or require telework for employees who refuse the vaccine.
Notwithstanding safety considerations for employees who refuse a vaccine, you also should expect and prepare to handle requests for exemptions and accommodations from employees with medical, religious, or social and political objections to a vaccine.
Medical and Religious Objections or Requests for Accommodations
This year, the Equal Employment Opportunity Commission (EEOC) updated its guidance, Pandemic Preparedness for the Workplace—originally issued in 2009 in response to the spread of the H1N1 virus—to address the novel coronavirus. The EEOC stated that businesses covered by the Americans with Disabilities Act (ADA) and Title VII of the Civil Rights Act of 1964 can require employees to get vaccinated during a pandemic with two notable exceptions:
- An employer may not require a vaccine for an employee with an underlying medical condition if the vaccine would place her at a greater risk for illness. For example, individuals with egg allergies may not be required to take a flu shot that was grown in an egg.
- An employer cannot mandate a vaccine if an employee has a religious objection. Importantly, religious grounds are very broad and can be based solely on an individual belief.
When exceptions apply, the EEOC noted in its guidance that employers must provide employees with a reasonable accommodation so long as it doesn’t pose an “undue hardship” on employers, a legal benchmark that is lower under Title VII (religious exception) than it is under the ADA (medical or disability exception).
Reasonable accommodations might include requiring the employee to work from home, using additional PPE, providing isolated workstations, or removing employees from public exposure or customer-facing positions.
Political and Social Objections
Given the current politically charged climate, you may also face political and social objections to a mandatory vaccine program. Employers already requiring vaccinations have likely faced objections to mandated vaccines proven effective for decades.
The objections are typically born of the belief that mandatory vaccination poses moral, ethical, and public health issues. Such ideology has commonly been referred to as the “anti-vax” movement. With a rapidly developing vaccine for COVID-19, you should expect to encounter similar issues.
In the past, federal courts have held that employees raising secular objections to mandatory vaccination, as opposed to objections based on “sincerely held religious beliefs,” aren’t protected under federal law. Therefore, if an employee refuses to be vaccinated entirely for ideological reasons, you would have grounds for termination. You should exercise caution, however, based on the aforementioned considerations.
Should I Simply Encourage Vaccine Rather than Require It?
Many employers provide incentives for employees to receive flu shots. Even in manufacturing or office settings where there’s limited exposure of employees to the public, you can and should continue to encourage vaccines.
Encouragement may include employer-subsidized vaccines, making vaccines available at the workplace for free or a limited expense, or making sure company-offered health insurance covers vaccinations. Importantly, employers who strongly encourage vaccines face far fewer issues than those who mandate them.
Before mandating a vaccine, do your homework and establish a plan. At a minimum, the plan must include a reason for the mandate, any exceptions, and a process to accommodate employees with objections. Termination should be a last resort because even the best plan may not protect you from litigation over the discharge.
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