A few weeks ago we attended an intriguing and relevant webinar from Jackson Lewis aptly named, To Vaccinate Or Not To Vaccinate...That Is The Question presented by Sheri Giger and David Mohl. This webinar answered questions that are on many employers' minds during this time, including whether they can mandate their employees getting the COVID-19 vaccine.
We learned a lot from this webinar, including pros and cons of mandating vaccines and best practices (e.g. having a plan for possible non-compliance/non-cooperation). While there's a lot to digest, one important takeaway is that this is very much a grey area, given the ever-evolving landscape and continuous developments.
Considerations Regarding Vaccinations In The Workplace
One takeaway from this webinar is that there are no hard and fast rules when it comes to mandating vaccines. For guidance, Giger and Mohl offered some pros and cons to this approach:
- Employees who receive vaccinations will be able to work with much greater safety.
- May help lead to a return to normal through progress toward “herd” protection.
- Employees may be more likely and feel more comfortable returning to work if everyone is vaccinated.
- Customers may feel more comfortable knowing employees are vaccinated.
- If an employee experiences an adverse reaction and they were required/encouraged to be vaccinated, they may blame/sue their employer.
- Employees may be opposed to being vaccinated due to political, disability/medical, pregnancy, religious, or personal security/privacy reasons.
- Vaccines are currently only approved under the Emergency Use Authorization (EUA), therefore some employees might feel that they are a “guinea pig.”
- Employees who didn’t get the vaccine might be treated differently.
Another key point for employers to consider is that there are currently no laws that require employees to get a COVID-19 vaccine. For instance, there is no rule from the Center for Disease Control and Prevention (CDC) or from the Occupational Safety and Health Administration (OSHA) requiring vaccinations. On the flip side, some states such as Indiana, Kentucky, Michigan, Missouri, New Hampshire, and North Dakota are considering laws that expressly prohibit employers from mandating the vaccine.
Guidance From The EEOC
More direction was also drawn from the U.S. Equal Employment Opportunity Commission (EEOC) Vaccination Guidance. The guidance addresses whether employers can mandate the vaccine without being in conflict with the federal discrimination laws under the EEOC jurisdiction. The simple answer is yes, with some caveats.
Employers may need to accommodate those with a disability, as well as those who are pregnant or have religious beliefs. If a vaccination requirement screens out an individual with a disability, the employer must show that an employee who isn’t vaccinated poses a direct threat to the health or safety of others whereby a reasonable accommodation wouldn’t reduce this risk. Employers should also be mindful that a vaccination requirement may lead to discrimination claims due to race, gender, pregnancy or other classifications, in which case this requirement would need to be proven as necessary for the workplace. The guidelines also note that employers should be cautious when asking employees certain questions (e.g. pre-screening vaccination questions which may elicit information about a disability).
To-Do List For Employers
Whether employers are encouraging or mandating vaccines, they have some planning to do! Here’s a helpful to-do list for employers to get started:
- Determine the type of policy (e.g. mandatory, encouraged with incentive, encouraged with employer assistance, encouraged, or voluntary).
- If you are planning to encourage employees with incentives, consider whether and how you might accommodate or provide reasonable alternatives for employees who are unable to vaccinate due to a disability, pregnancy or religious concerns. It’s also important to consider whether the incentive takes away from it being “voluntary.”
- Employers should consider other factors such as providing additional time off (for dealing with possible side effects) and covering the cost or subsidizing costs for employees/families when they encourage vaccination.
- Consider state or local laws that may affect the decision to mandate vaccination.
- Consider union contract obligations that may affect the decision to mandate vaccination.
- Provide employees with educational resources, including those from the CDC, as well as FDA guidance, state plans and processes (e.g. how to apply for vaccinations).
- Plan for scheduling and confirm whether employees can receive vaccinations on site. If not, require that they provide their vaccination schedule to ensure work schedules don’t interfere with appointments and you can plan around lack of staff. It’s also important for employers to plan for absences post-vaccination.
- When it comes to confidentiality, employers should decide whether employees are required to provide proof of vaccination and what documentation they’ll need (along with who will have access to that information).
- Employers will want to plan for how they will address other objections including adverse reactions, personal or philosophical objections, safety concerns, etc.
- Post-vaccination, employers will want to remind employees to continue complying with COVID-19 protocols (e.g. hand sanitization, mask wearing, physical distancing).
Along with a to-do list, Giger and Mohl provided best practices for employers, such as:
- Have a written policy detailing the specifics (e.g. is vaccination mandatory or encouraged, whether there are phases or timelines for employees and if you’re offering employees paid or unpaid time off if they have an adverse reaction after vaccination).
- Have a process for dealing with potential exceptions (e.g. disability, religious beliefs, pregnancy, breastfeeding) when mandating vaccines. Reasonable accommodations may be required - don’t forget the importance of the interactive process!
- Plan responses for possible non-compliance/non-cooperation. This can include requiring unvaccinated employees to work from home, additional COVID-19 precautions, forced leave or even discipline.
No surprise, we thought this webinar presented by Jackson Lewis answered a lot of pertinent questions during the pandemic. We hope you feel the same are prepared to address these challenges at your workplace, while keeping the safety of your employees a top priority.
Should you have any questions regarding these topics, please consult your organization’s legal counsel.