The COVID-19 vaccine has now become widely available in the U.S. As more and more people get the vaccine, employers are asking whether or not the vaccine can or should be required to return to in-person work in the office. With the desire for life to return to normal, some employers think of the vaccine as a way to make employees feel safe as they return back to the office, however, this may bring up greater HR issues that employers may not yet have considered.
When thinking about how to approach mandating or even encouraging employees to get the vaccine in your company, it’s important to understand the options available to you and the potential backlash to your chosen option.
According to a study performed by Gartner, only 9% of employers are considering requiring employees to get a vaccine before returning to the office, while 60% say that they are willing to encourage employees to get vaccinated and provide resources to employees on where and how to get vaccinated. That 60%, however, are not willing to require it to return to in-person work.
Many of our current clients are wondering what to do as they work towards the goal of returning their employees to the office. Because of this, we’ve reached out to a few of our trusted experts for some guidance. Here’s what we found!
According to our attorneys, “employers can require vaccination as a matter of business necessity, meaning when the employer has determined that the failure to be vaccinated constitutes a “direct threat” to other employees in the workplace. However, employers must accommodate, where justified, employees’ requests to be exempt from the vaccination requirement based on disability/medical condition or religious reasons.”
In other words, if you’re looking to require your employees to receive the vaccine, you should understand a few key ideas.
As you consider whether or not to require your employees to get the vaccine, it’s important to understand why you might want or need to. When you mandate anything, there is a chance for negative ramifications to your company in the form of culture loss, legal backlash and everything in between. Consider that there are religious, medical, and personal reasons some people may not choose to or be able to receive the vaccine. It’s important to note that the vaccine cannot be mandated for remote employees.
As you develop your vaccine policy, it’s important to consider whether you want to simply communicate the importance of getting vaccinated, provide incentives, or mandate the vaccine. This decision should be influenced by your industry, culture, and requirements applicable to office locations.
The Equal Employment Opportunity Commission (EEOC) advises you to partake in pre-screening questions to understand the effect of the ADA’s provision on disability-related inquiries. If you choose to mandate the vaccine and/ or administer the vaccine to your employees, you must show that the pre-screening questions are “job-related and consistent with business necessity.” You can avoid the ADA implications by using a third party to conduct the administration of the vaccine and the pre-screening questions or make the vaccination program voluntary.
It’s important to determine whether reasonable accommodations will reduce the direct threat without undue hardship. Engaging in an interactive questioning process will help you make an individualized assessment on how best to move forward. Consider the duration of the risk, the nature, and severity of the potential harm, the likelihood that potential harm will occur, and the imminence of the potential harm. If there is a threat, can it be reduced with accommodations such as personal protective equipment (PPE), a modification to the office space, or social distancing?
For employees who refuse the vaccine due to ADA-covered conditions, resulting in their being excluded from the workplace, the EEOC warns this may not lead to automatic termination. Consider providing remote work options or potentially a leave of absence until the perceived risk has abated.
Because the vaccine is not currently approved for use in pregnant women, it’s important to provide accommodations to pregnant or breastfeeding women as provided to other non-disabled employees who object to receiving the vaccine.
Lastly, employers need to consider Title VII religious accommodations. Employers must provide accommodations for employees who hold religious beliefs that prevent them from being vaccinated.
Employees who are vaccinated as part of a COVID-19 vaccination program, who are injured as the result of an adverse reaction may have a valid workers’ compensation claim. The important aspect of navigating these potential claims is whether your vaccine policy is mandatory, recommended, or associated with employee rewards.
What if a large part of your organization refuses to be vaccinated?
If employees do not have a valid objection under Title VII or ADA, how will you go about proceeding with their employment? If you do not treat those who refuse the vaccine consistently, it may lead to discrimination claims.
Will you require employees to provide proof of the vaccine?
If you choose to require proof of vaccination, caution employees to not provide additional unrequested health information, as that could lead to other privacy issues. The ADA and Genetic Information Nondiscrimination Act (GINA) is implicated if medical information is provided.
According to the same study by Gartner referenced above, 53% of employers are not planning to mandate or track employee COVID-19 vaccination status. In addition, 20% of those employers are willing to have employees self-report vaccination status, but not require proof. Finally, only 3% of employers are willing to require employees to show proof of vaccination to return to work.
Other questions to consider:
There may be other ways to mitigate the spread of COVID-19 in your workplace, so it’s important to consider the company culture implications that mandating the vaccine may have. Consider if mandatory vaccination programs are necessary given the alternatives, like modified office space, PPE, and social distancing. You can avoid any legal and compliance risk by educating employees on the facts surrounding the vaccine.
When it comes to mandating employee vaccines, it’s important to consider the implications that may arise. Check out more information in the webinar our CEO, Kristi Pastore, participated in on April 1.