Mandating or Requiring a COVID-19 Vaccination

With so many people following the development and release of a COVID-19 vaccination, there are many considerations that employers should keep in mind as we draw closer to approvals. Many employers have raised the question if implementing vaccinations in the workplace should be enforced, and to what extent.

CONSIDERATIONS FOR EMPLOYERS

One critical area for employers to assess is the type of industry they are in and the day-to-day operations their employees engage in within the organization, with clients, customers, and with the general public. What may be critical or impactful for one work environment may not factor as strongly for another. For example, health care, travel, restaurant, or retail industries that have frequent interactions with the public and present greater risks of exposure will find a stronger interest in establishing mandated vaccination policies. Businesses that have transitioned smoothly and successfully to remote work or have a typical office work environment with less interaction with the general public may be more likely to leave the decision to their employees.

Another consideration is how employees will respond to a mandated COVID-19 vaccination. In a Gallup poll from October 2020, 47% of Americans responded indicating they would not receive a COVID-19 vaccination. One distinctive difference with regards to previous vaccination mandates, such as the flu vaccine, is that the flu vaccine has been fully approved by the FDA as opposed to the COVID-19 vaccine which was filed under the “emergency use authorization” phase through the FDA. Additionally, a potential risk employers face with a mandated vaccination policy is having employees choose to leave employment with the company instead of being forced to receive the vaccination. Employers will have to look at ways to work with employees so that they feel well informed of the business reasons for the decision as well as the benefits and reasons the company is choosing a vaccination mandate policy.

LEGAL RAMIFICATIONS

While there currently isn’t a law that addresses the issue, there is a strong supporting case for employers to implement a mandated COVID-19 vaccination for employees, provided their policy is job-related, allows for exceptions, and is consistent with business necessity. The Equal Employment Opportunity Commission (EEOC) issued guidance on December 16, 2020, to employers considering COVID-19 vaccination policies and their obligations to their employees under civil rights laws. Similar to a mandated flu vaccine, if an employee has a disability covered by the Americans with Disabilities Act (ADA), an exemption would be considered a reasonable accommodation unless there is an undue hardship to the organization. An undue hardship is defined as significant difficulty or expense to the employer.

Like other ADA requests, employers would want to go through the interactive process to better understand the nature of the disability or limitation in getting the vaccination. Also, as part of the process, the employer may be able to request documentation from the employee regarding the limitation or disability and the specific need for accommodation.

Employers that are subject to Title VII of the Civil Rights Act must look to accommodate employees with seriously held religious beliefs that prevent them from receiving the vaccine. Additionally, employers with unions will have to review and assess the impact to collective bargaining agreements prior to implementing and rolling out a formalized vaccination process or policy.

CURRENT GUIDANCE

Based on the lack of concrete guidance from various government entities, it is difficult to predict precisely how rules and regulations regarding COVID-19 vaccinations will translate to the workplace with absolute certainty. Employers with high-risk environments that are more inclined to implement vaccination mandates to keep their employees and customers safe will want to assess their policy against various laws and regulations, including how they will respond to accommodation requests brought forward by employees. For employers with less exposure risk to COVID-19, a policy that strongly “encourages” rather than “requires” vaccination may be better suited. A policy that encourages your employees to vaccinate combined with other preventive measures within the work environment as outlined by the CDC or Department of Health can be an effective practice to keeping employees safe while also allowing enough flexibility to respond with appropriate and effective solutions to the inevitable one-off situations that may arise.

Vaccinations are a polarizing topic for many employees right now. What is acceptable in one location may be unacceptable in another location. While a one-size-fits-all strategy will not successfully work for every employer, it’s important for each business to weigh the benefits and risks of COVID-19 vaccinations verses the obligation to providing a safe and hazard free environment.

For additional tools and resources related to COVID-19, including a COVID-19 policy and letter to employees, please visit our COVID-19 EMPLOYER TOOLKIT .

Prepared by Kim Matus

HR Business Partner, HR Service.

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