The long-awaited COVID-19 vaccines appear to be on the verge of mass distribution across the country. It’s a welcome development, but also one that can put employers in a dilemma: should they require workers to be vaccinated and, if not, what should they do to keep workers safe?
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The question of whether or not vaccinations are required is not a new problem for a number of employers as many, especially those in the healthcare sector, already have policies mandating some vaccinations like flu shots unless a worker fits into an exemption provided by law. The American with Disabilities Act (ADA) and Title VII of the Civil Rights Act of 1964 both provide exemptions from an employer’s vaccination policy.
The Equal Employment Opportunity Commission (EEOC) has stated that companies covered by ADA and / or Title VII may legally require vaccinations during the pandemic, with two exceptions:
- Under the ADA, an employee with a medical reason, such as an allergy to a vaccine component or other underlying condition that makes the vaccine inappropriate, may be granted an exemption from a mandatory vaccination policy.
- Title VII allows an employee to request an exemption based on a genuine religious belief.
Under both laws, employers should work with workers to seek exemptions, to explore other ways to prevent the virus from spreading, such as: For example, work from home, use additional personal protective equipment, and work in remote areas.
What is to be considered?
Jennifer Aaron Hataway, attorney at Butler Snow LLP in Baton Rouge, Louisiana, says employers considering mandatory vaccination policies must ask themselves, “What will I do if an employee refuses to be vaccinated?”
Since some employees are unlikely to be ready to be vaccinated, “the employer should consider whether to continue working if his policy requires him to dismiss a large part of his workforce for refusing to be vaccinated”, says Hataway.
Another consideration is ensuring equal treatment in the workplace. “An employer may want to provide an allowance (exemptions mandated outside of ADA and Title VII) for a highly valued worker who does not wish to be vaccinated,” says Hataway. “Granting an exemption for an employee, or dismissing a similarly situated employee for violating the mandate can create the basis for potential discrimination claims.”
Whitney R. Brown, an attorney at Lehr Middlebrooks Vreeland & Thompson, PC, in Birmingham, Alabama, says employers should consider the following when deciding whether or not to require COVID-19 admissions:
- Risk factors for transmission in the workplace. For example, do employees work closely with one another or with consumers? Are there multiple shifts or shared equipment? Are all work areas serviced by the same ventilation system and is the company maximizing the opportunities for cycling in the fresh air?
- COVID-19-related lost working days rate. Does the employer lose working days even if no transfer is suspected in the workplace?
- Other justifications such as employers working with vulnerable populations.
- Existing health measures such as face masks, partitions, shift changes and employees who work from home.
- Regardless of whether the employer has in-house staff, legal staff, or has readily available external expertise to assess requests for exemptions from a mandatory policy.
- The employer’s history of other vaccinations such as flu shots.
- Reactions from employees as they may have strong feelings for and against vaccinations.
Brown said employers who have already successfully implemented face masks and other measures may want to evaluate whether they would like to post the topic this year.
Mandate vs. Incentives
Instead of requiring employees to be vaccinated against COVID-19, many employers may choose to offer incentives to encourage them to take the vaccine voluntarily.
“Employers should consider whether their current wellness programs can be used or tweaked a bit to reward employees for vaccination,” says Hataway. Additionally, employers may want to give workers an hour or two of paid time off to get the vaccine, and may want to include other perks.
Brown urges employers to work with an attorney to ensure that all incentives comply with EEOC wellness program regulations and that programs are not designed to identify or stigmatize employees based on their disability or religion.
Tammy Binford writes and edits news bulletins and newsletter articles on labor law issues for BLR web and print publications.
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