As COVID-19 vaccines become increasingly available across the country, businesses are starting to bring their employees back into the office. With the influx of vaccines rolling in, many employers are considering whether to introduce a mandatory vaccine policy as a condition of returning to work or setup some sort of incentive program to encourage employee vaccination. This article dives into how employers should approach the question of workplace vaccine policies and the potential exposure associated with a company-wide mandate.
Mandatory Vaccine Policies are High Risk
For starters, a whopping one in four Americans would refuse a COVID-19 vaccine outright if offered. Therefore, any workplace that implements a mandatory workplace vaccination policy could be faced with a large chunk of its workforce refusing the vaccine, even with the threat of disciplinary consequences. Some workers, who would otherwise not get the vaccine, would be forced to do so in order to keep their jobs. Mandatory vaccination policies have the potential to wreak havoc in the workplace.
EEOC Considerations Around a Mandatory Vaccine Policy
A number of federal agencies create hurdles to implementing workplace vaccination policies. For instance, the Equal Employment Opportunity Commission (EEOC) released guidance on how to treat employees with a disability. Here, the EEOC explained that if the vaccination requirement “screens out or tends to screen out an individual with a disability, the employer must show that an unvaccinated employee would pose a direct threat due to a significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.'”
This means that if an employee is a) unable to receive the vaccine due to a disability or b) objects to the vaccine on the basis of a disability, before excluding the employee from the workplace, an employer must make a determination that the employee’s presence would pose a “direct threat” to him/herself or to others at the workplace. If the unvaccinated employee poses a direct threat, the employer must assess whether it can provide a reasonable accommodation. The EEOC analyzes reasonable accommodations on a case-by-case basis, looking at all the facts surrounding the employer/employee interaction. A workplace mandatory vaccination policy is difficult to implement at best, and impossible to do at worst. Instead of implementing a mandatory vaccination policy, employers should avoid the headache and opt for other approaches.
Voluntary Vaccination Programs
To avoid the aforementioned risks of potential EEOC action or other legal jeopardy, employers should consider a voluntary vaccination policy. Here, employers need not accommodate ADA claimants or sincerely-held religious-belief based objections. Many employers have considered incentives as a way to encourage employees to get vaccinated.
Before making any decisions on a workplace vaccination policy, employers should first figure out how many employees have received the vaccine. Next, employers need to know how many employees plan on receiving the vaccine and which plan to decline the vaccine. This initial discovery, which an employer can permissibly obtain, will help inform whether a formal workplace policy is necessary. For example, if only a small portion of the workforce refuse vaccination, the unvaccinated employees may safely return to the workplace. But, if a substantial number of employees refuse vaccination, a mandatory policy may result in mass employee terminations. A better solution is designing an incentive program to motivate the unvaccinated portion of the workforce to get a vaccine. In this system, the employer avoids potential terminations and the threat of litigation.
Regardless, all employers should continuously monitor federal, state, and local guidance regarding return to work requirements. Additionally, employers should consult with their legal counsel or labor consultants on how to design legally permissible vaccination policies. NLRA stands ready to help employers of any size and industry through this process. We stay on top of this evolving area of compliance. We stand ready to assist and advise our clients any time of day, 24/7.
