The COVID-19 vaccine has already stirred up a bit of controversy in the last few months. As the vaccine continues to roll out, it’s important to understand what you, as an employer, need to know. We’ve been getting questions about the vaccine for weeks now.
Because of that, we’ve reached out to a few different people 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 potential backlash to occur. Not to mention, the religious, medical, and personal reasons some people may not 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 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 implicate the ADA’s provision on disability-related inquiries. If you choose to mandate the vaccine and 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 process will help you make an individualized assessment 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), enclosed office space, or social distancing?
For employees who refuse the vaccine on account of ADA-covered conditions, who may be excluded from the workplace, the EEOC warns this may not mean automatic termination. Consider providing remote work options or potentially a leave of absence.
Because the vaccine is not currently approved for use in pregnant women, it’s important to provide accommodations 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 do so, caution employees to not provide health information, as that could lead to other issues. The ADA and Genetic Information Nondiscrimination Act (GINA) are implicated if medical information is provided.
Other questions to consider:
There are a few alternatives you can consider besides mandating the vaccine. First, you can educate employees on the facts about the vaccine. This can be done through informational Q&A sessions or updates through email, social media, and other company postings.
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 enclosed office space, PPE, and social distancing. You can avoid any legal and compliance risk by educating and encouraging employees to be vaccinated.
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.