Guidance on Vaccination Mandates and Policies
Vaccination mandates already exist for many federal employees and contractors, some state government employees, and employers in certain industries. New vaccine requirements have just been announced for private employers with more than 100 employees, with details and enforcement dates to come.
Many organizations not covered by mandates or prohibitions are in the process of considering whether they should implement a COVID-19 vaccination policy for their onsite employees. For these employers, there are several options to consider as it is not an “all or nothing” scenario. Vaccination policy options these employers may consider range from a fully voluntary policy to a “soft mandate” or hybrid policy to a mandatory requirement. Organizations can also consider a phased implementation of progressively stronger requirements based on business needs, employee views, and the changing status of the pandemic.
According to the EEOC and other federal agencies, employers can require that their onsite employees are vaccinated based on the requirement that “an individual shall not pose a direct threat to the health or safety of individuals in the workplace.” Such a requirement must be based on business necessity; be consistent with any applicable federal, state and municipal laws; and must allow accommodations for medical and religious exceptions. Another consideration is that a unionized employer can’t implement a mandatory policy unilaterally but must instead bargain with the union to reach a resolution.
Vaccination requirements can apply to all employees who are physically entering the workplace as well as those entering other sites when representing the employer. Employers can instead choose to limit them, for instance, to those in high transmission locations or certain job categories where the health or safety of others is directly impacted. Any such limit must avoid discrimination or disparate treatment.
Vaccination Steps to Consider
- Employers can consider surveying their employees to find out how many are vaccinated or plan to get vaccinated. This can be an anonymous survey, which may increase responsiveness. Responses will provide an indication of employee attitudes toward getting vaccinated and how many would be impacted by a possible mandate, which could ultimately impact staffing levels, morale, and productivity. NOTE: At this stage, employers may not ask why someone is not vaccinated or planning to be.
- A next step can be to share information about the benefits and actual risks of getting vaccinated. Share only facts and statistics from trusted sources, rather than personal views.
- According to the EEOC, employers are allowed to offer incentives to employees to become vaccinated voluntarily as long as the nature of the incentive is not discriminatory and “not so substantial as to be coercive.” One example of an incentive, which is required in some states, is providing paid time off to get vaccinated and possibly to recuperate from any reaction. Under the American Rescue Plan Act, employers can be reimbursed through a tax credit for this paid time through September 30, 2021. Other examples of incentives include bonuses, gift cards, raffles for prizes, extra paid time off, and other privileges.
If offering incentives, employers should consider including those who have already gotten vaccinated to ensure a sense of fairness. Proof of vaccination or a signed attestation can be required to be eligible, and these records must be kept confidential.
- Either in addition or instead, employers can institute restrictions and penalties for those not vaccinated. Examples, based on individual business environments and needs, include:
- Required to wear masks while onsite, if not already mandated
- Submit to daily screenings prior to entering a worksite
- Required to be tested regularly (likely at employer’s expense)
- Required to maintain social distancing while onsite
- Restricted access to certain areas of the workplace such as common areas or lunchrooms
- Prohibited from entering work site and, if applicable, client sites (if working remotely is possible)
- Restrictions on business travel
- Switch to staggered or alternate work schedules to limit interactions
- Reassignments to an alternate work location or another position that can be performed remotely
- Charge unvaccinated employees more for their benefit premiums, such as the $200 surcharge enacted by Delta Airlines (not allowed for those who are under a qualified exemption, and increased premiums must meet ACA requirements)
- Place on unpaid leave until vaccinated
- Termination for failure to comply, if the policy is mandatory. NOTE: While this has been ruled legal in at least one prior court case, there could likely be legal challenges to termination based on the individual company circumstances. Seek legal guidance before proceeding.
Vaccine Policy Requirements
To implement an effective vaccine policy, communication is key. The written policy should include the why, when, and what if’s, spelling out definitions and expectations, and — if applicable — deadlines and consequences. It must also establish and communicate a process to consider exemption and accommodation requests if the policy is mandatory.
Accommodations for Exemptions
If a mandated vaccine policy is implemented, it must allow for exceptions for qualifying medical reasons and sincerely-held religious beliefs. Employers must facilitate an interactive process to discuss and consider possible accommodations to be exempt. Some of the restrictions mentioned above can be considered, as well as any other applicable options. The exemption must be granted unless the employer can demonstrate that there are no accommodations that would prevent the individual from posing a “direct threat to the health or safety of others in the workplace” and/or such an accommodation would pose an undue hardship. The employer must also ensure and assure that there will be no retaliation for seeking accommodation.
Seek Guidance and Frequent Updates
Laws, requirements and recommendations regarding vaccination policies are changing daily. Employers should stay informed and up to date on any developments that impact their industry, location, and organization. Reference HR Service’s monthly Legal Update; the websites of federal agencies, your state health department, and local government; as well as trusted news sources. Be prepared to adjust policies accordingly. Seek legal counsel if you are concerned about potential legal consequences related to your policy.
Please get in touch with HR Service for help with your vaccination policy, how to respond to accommodation requests, to learn more about existing or forthcoming vaccination requirements, or other HR-related needs.
Prepared by Rhonda Hollier, HR Business Partner, HR Service, Inc.
The White House: COVID-19 Action Plan, including “Requiring All Employers with 100+ Employees to Ensure their Workers are Vaccinated or Tested Weekly”