The roll-out of the COVID-19 vaccine is slowly underway – what should an employer know if considering whether to mandate that its employees be vaccinated as a condition of employment? It’s a great question and a thorny one. Employers must use their best business judgment in light of the specific nature of their business and their employees contact with one another and the public. It may be that a mandatory policy is appropriate for certain workers based upon their interaction with other employees and the community, but not for others. There are also exemptions that need to be accommodated and other legal and practical implications attendant to any vaccine policy. An employer’s vaccination policy should be developed in consultation with counsel.
An employer’s vaccination policy should be developed in consultation with counsel.
The following are questions and issues for employers to consider as they develop a vaccination policy that is appropriate for their workforce.
Can an employer mandate the vaccine?
The very first question an employer must address is whether their business can require workers to receive a COVID-19 vaccination. On December 16, 2020, the EEOC came out with its first semblance of guidance on this. While the EEOC guidance clears the way for employers to mandate vaccination with appropriate business justification it does not explicitly sanction mandatory vaccinations in all work environments and for all employees. It is important that employers make an individual assessment of their workforce, and the positions within that workforce. There may be a basis to mandate vaccination under the ADA when a worker poses a “direct threat” to themselves or others by their physical presence in the workplace without being immunized. Determining if an employee is a “direct threat” is made on a position by position basis and centers around whether or not the position requires close contact with other employees or the public. For workplaces that do not require close contact (but there is contact between employees and/or the public), they may still be able to establish an adequate justification given the nature of COVID-19, but there may be other factors to weigh in imposing a mandatory policy. This will be a highly individualized business determination and decision.
If an employer mandates the COVID-19 vaccination, what reasonable accommodations must be provided?
If there is appropriate business justification to mandate vaccination, and an employer decides to do so, it must follow accommodation requirements under the ADA and Title VII. This means that employers must provide reasonable accommodations to employees with disabilities and employees who are unable to receive the vaccine on the basis of sincerely held religious beliefs. Processing exemptions can be a complicated and murky task. There is a risk that if not properly addressed an employee could file a discrimination complaint.
Should an employer mandate a vaccine?
It may be appropriate to consider a voluntary vaccination policy if your workforce (or a portion of the workforce) is not in a high-risk industry. The following are some of the factors employers should weigh in contemplating whether a mandatory or discretionary vaccine policy is appropriate for them:
Potential Liability to the Employee... and to the Public.
What liability might exist if employees suffer side effects from the vaccine? Employers may face liability pursuant to state worker’s compensation laws if an employer mandates the vaccine and then an employee suffers a severe reaction. On the other hand, what potential negligence liability might exist if your employees are not vaccinated and they have close contact with the public?
If you have a mandatory vaccine policy, are you prepared to terminate an employee who refuses to be vaccinated and does not qualify for an exemption?
How will your employees view a mandatory vaccine policy? Will they resent the policy or feel pressured?
If you are considering a discretionary policy, are there opportunities to incentivize vaccination as part of your wellness program? What about monetary incentives? What kind of incentives can you create and have you consulted with employment counsel about any benefits/hour/wage implications of such incentives?
There is significant uncertainty. We have heard from the EEOC for the first time on vaccination mandates, but it is unlikely to be the last. We are all receiving new guidance all the time from regulatory bodies as well as from federal, state and local health departments. We are constantly learning new scientific information about the virus and vaccine. What is your business’ risk tolerance and ability to adapt its vaccination policy to a changing environment?
How will you implement a vaccine policy?
Do you have a written plan for implementing your vaccination policy, including how it will be communicated to your employees?
Administration of Vaccine.
Will you directly administer the vaccine, contract for the vaccine to be provided, or require proof of vaccination from a third party? These choices each carry distinct legal and practical considerations.
Who will pay for the vaccine? Remember, the Fair Labor Standards Act (FLSA) requires covered employers to reimburse employees for expenses incurred on the employer’s behalf or where the employee is required to spend money for the convenience of the employer.
Who will be charged with handling the associated administrative burden? Who will keep the records, process vaccination proof, assess exemption request and implement discipline policies or incentive programs?
What will your policy be for time off to receive the vaccine or if an employee becomes sick after receiving the vaccine?