Employers and business leaders must decide how to handle COVID-19 vaccinations for employees. It’s a hot-button issue that’s complicated by an array of factors. And, as with so many issues businesses have faced during the pandemic, there are no easy answers.
There are several general points worth contemplating when considering your company’s best course of action.
In this article, we will:
- Provide links to federal guidelines on the topic
- Consider possible pros and cons of requiring vaccines for employees
- Outline four common approaches
- Explore exceptions employees may seek to vaccination mandates
- Identify five potential legal issues related to the topic
Essential resources for COVID-19 vaccines and the workplace
For the most up-to-date information, please visit the following government websites:
- Workplace vaccination program – Centers for Disease Control and Prevention (CDC)
- COVID-19 vaccination distribution process – U.S. Health and Human Services
- What you should know about COVID-19 and the ADA, the Rehabilitation Act and other EEO laws – U.S. Equal Employment Opportunity Commission (EEOC)
- EEOC proposed wellness rules
The situation will continue to evolve over time – making ongoing, reliable HR and legal guidance more critical than ever before.
Pros and cons of requiring COVID-19 vaccinations for employees
Before deciding which approach to take in your business, spend time evaluating all possible outcomes, both positive and negative, that could result from a COVID-19 vaccine mandate for employees.
These will depend on an array of unique factors specific to your business and workplace. Other factors include federal, state and local laws (not to mention vaccination distribution plans and availability).
- Reassurance for your workforce that your company is doing everything possible to protect them and prevent the spread of COVID-19 in your facilities
- Reduction in potential liabilities associated with employees contracting COVID-19 at work
- Negative impact on morale if most employees prefer to make their own healthcare decisions
- Logistical and enforcement challenges
- Greater administrative obligations, as well as the requirement to engage in accommodation dialogues with employees who cite exceptions to their receiving vaccines (see below)
- Potential future legal repercussions or liabilities (e.g., if an employee experienced an allergic reaction to a required vaccine)
COVID-19 vaccinations for employees: Four approaches
In many situations, employers can require employees receive a COVID-19 vaccine prior to returning to a workplace.
In general, employers are not required to provide a business justification and may not be required to demonstrate a relationship between an employee’s job and the need to get a COVID-19 vaccine.
However, whether your business can require COVID-19 vaccinations for employees and whether it should are two separate issues.
The following approaches reflect a wide spectrum of options, which may or may not be suitable for your specific business or workplace.
1. Mandating vaccines
If you decide to require COVID-19 vaccinations for employees, you’ll need to implement a formal policy. Note that it’s reasonable to assume that your company will never achieve 100% compliance with your vaccination mandate.
You may expect one or more employees to assert the following exceptions:
Medical conditions, which require accommodations
Some employees may have conditions that preclude them from receiving a COVID-19 vaccine.
For example, health experts have advised certain immunocompromised individuals refrain from being vaccinated, at least for now. Others may have an allergy to a vaccine ingredient.
In these instances – and according to the Americans with Disabilities Act (ADA) – employers may only exclude employees from the workplace if they can prove that an unvaccinated employee would cause a direct threat due to a substantial risk of harm to the health and safety of the individual or others that cannot be eliminated or reduced by a reasonable accommodation.
Employers are required to engage in the ADA interactive process to decide how an employee’s unique situation may best be accommodated.
Note: Exclusion from the workplace should not necessarily equate with termination, as it may be possible for the employee to still perform work with an accommodation. It’s critical to consult with HR experts to handle these situations in an optimal way.
If an employee objects to receiving a COVID-19 vaccine based on their religious beliefs, work with them to determine what accommodations might enable them to continue working.
To legally exclude an employee from the workplace, you must demonstrate an undue hardship on your business in accommodating them.
Remember: exclusion from the workplace (resulting from a refusal to receive a COVID-19 vaccine) doesn’t necessarily mean termination.
Personal concerns or objections
What about employees who simply refuse the vaccine for various personal reasons? Maybe they perceive coronavirus vaccines as having not yet been thoroughly tested. Perhaps they object to receiving any vaccines, period.
This is potentially the trickiest scenario as there are no clear-cut resolutions. Try speaking with the employee directly and privately about their specific concerns, keeping in mind that their fears could be sufficient to trigger an ADA accommodation.
At the same time, be careful not to probe for personal information (“why” questions) or appear to violate medical privacy in any way.
As you can see, dealing with accommodation, termination and exclusion issues can be complex when mandating vaccinations for employees. That’s why many business owners and leaders opt to consult with experienced HR personnel, a professional employer organization (PEO) or legal resources to help minimize risks and potential liability.
2. Incentivizing vaccines
If you decide to influence – but not require – employees to get a COVID-19 vaccine, you may want to provide information and training on vaccine benefits and safety. You may also consider creating an incentive plan and sharing the plan with your workforce.
- Incentives might be anything from gift cards to additional paid time off (PTO).
- Think about what would be most attractive to your employees.
- Choose an incentive that aligns best with your workplace culture.
- And make incentives consistent across the board.
In January 2021, the Equal Employment Opportunity Commission (EEOC) proposed a new rule for the level of incentives that employers may lawfully offer to employees to encourage their participation in wellness programs requiring disclosure of medical information. Certainly, vaccines fall within the category of wellness plans.
- Currently, employers can offer incentives up to 30% of the total cost of health insurance.
- Participation in any wellness program must be voluntary.
- The new proposed rule states that, because participation must be voluntary, employers may offer no more than a minimum incentive to encourage participation.
Again, consult HR and legal resources when considering incentives – whether they’re designed to encourage vaccinations for employees or simply boosting staff morale.
3. Recommending vaccines
In this approach, you let employees know that your workplace recommends they get a COVID-19 vaccine. Your leaders are vaccinated to set a good example, and you provide information and training on the benefits and safety of vaccinations…