Can I require my employees to get the COVID-19 vaccine before returning to the workplace?
This question has been on the lips of many employees and HR leaders since the vaccine roll-out began in December 2020.
And, there is no quick response to this question. Based on current guidance and legislation, the answer is: it depends.
We've broken down the considerations and requirements for you as you determine what vaccine plan makes the most sense for your workplace.
Note: The following has been updated to reflect guidance issued by the the Centers for Disease Control and Prevention on March 16, 2021.
To some degree, yes, employers can mandate the COVID-19 vaccine. In fact, many employers will have a strong case for requiring vaccinations if failure to be vaccinated creates a threat to other employees and customers.
However, there are a number of considerations and accommodations you as an employer must make in order to maintain legal compliance for your workplace.
As you are considering whether to mandate the COVID-19 vaccine among your employees, think about the following factors:
A number of organizations will have a compelling case for vaccine mandates, due to the fact that non-vaccinated employees put customers, fellow employees or the general public at risk.
And, the context and industry of your organization will play into vaccine mandates. Travel, retail, service industry, health care and other businesses whose employees are at risk or put others at risk will have a stronger case to require vaccines than some other industries.
The EEOC released guidance on Dec. 16, 2020 that answers a number of questions around employer-mandated vaccinations.
Some clarifications include:
Per the EEOC, employers should conduct an assessment on four factors to determine whether a direct threat exists:
"Direct Threat" could mean that an individual who cannot be vaccinated will expose others at the worksite. If this is the case, the employer cannot exclude the employee from the worksite, unless there is no way to provide a reasonable accommodation (absent undue hardship) that would eliminate or reduce this risk so the unvaccinated employee does not pose a direct threat.
If there is a direct threat that cannot be reduced, the employer can exclude the employee from physically entering the workplace, but cannot automatically terminate the worker. Read more from the EEOC here.
Yes, you can ask an employee for proof of receipt of a COVID-19 vaccination in order to ensure the mandate has been met.
However, be careful with any follow-up questions if an employee does not produce proof of vaccination receipt. Questions from the employer about why they did note receive it may elicit to information about a disability and are subject to the ADA standard that they are "job-related and consistent with business necessity."
More and more employers are focusing on educating employees and encouraging vaccines, rather than mandating them.
Employers have found a number of positive rewards to incentivize vaccinations. Some include:
Consider your company culture and employees' priorities as you determine if and which incentives may make sense.
However, be aware that incentives may come with legal risks as well, and be careful as you select rewards to offer your team. And, be aware that incentives could inadvertently communicate to employees that the vaccine is risky, and the greater the value, the greater the perceived risk.
If you implement an incentive program, keep in mind that information received from employees documenting their vaccinations should be treated as confidential.
Some ways to encourage employees to get the vaccine without incentives include comprehensive education and fact-sharing programs and providing logistical information to employees. Even better, if it's feasible for your workplace, consider offering administration of the vaccine onsite.
If an employer determines NOT to impose a vaccine mandate, there are other risks to keep in mind.
Employees may allege that an employer has failed to provide a safe and healthy work environment, a requirement by the Occupational Safety and Health Act (OSHA). This is another area that could create risk for workplaces.
As the HR leader for your organization, make sure you have familiarized yourself with the requirements and risks around vaccine policies.
Create a Vaccination Plan
Work with your organization's leadership to establish a vaccination plan. As you approach and compile your vaccination plan, go through the following steps to ensure nothing gets overlooked.
Once you have established your vaccination plan and requirements, be extremely thoughtful in the way you communicate them to your employees. With widespread pandemic burnout and frustration, employees may not be receptive to mandates, so consider the way you introduce any requirements to your team.
Per the EEOC, any managers, supervisors or executives responsible for communicating with employees about vaccination requirements should know how to recognize accommodation requests from an employee with a disability or religious belief. And, they should know to whom the request should be referred to for consideration. Employers and employees should work together to identify workplace accommodation options that do not constitute an undue hardship (significant difficulty or expense).
There is no question that additional guidance around vaccinations will need to be released before the widespread reopening of businesses nationwide. Keep your eye out for any updates, and subscribe to our newsletter below in order to receive our email updates.
If you'd like to read more, below are some of our favorite resources in understanding vaccinations as an employer: