Throughout the COVID-19 pandemic, employers focused on the safety of all who visited their workplace.
Whether for employees, customers, vendors, or other business partners, employers battled safety issues with socially distanced spaces, personal protective equipment (PPE), health screening tools, hand sanitizer, or wash stations. Now, the COVID vaccine is available to essential workers and will soon become available to the general public.
The Equal Employment Opportunity Commission (EEOC) determined that employers can require workers to get the COVID vaccine; however, it’s only if employees pose a significant risk that a workplace accommodation cannot eliminate. If exceptions are considered and the vaccine requirement is due to business necessity, employers may opt to mandate the vaccine. Still, the current EEOC guidance is to encourage rather than require the vaccine.
Obviously, many factors will go into this decision, including your business’ operations and policies, your industry, how you service customers, your state and local laws, and much more. While you consider your individual businesses’ stance, need to, and right to require the vaccine, we also encourage you to think about ways that may complicate a mandate.
Before you decide whether to mandate the vaccine for your employees, have you considered…
1| Employee morale
How will your employees react if you mandate a vaccine? Will they consider this too much control by their employer? Would employees who might otherwise gladly get a vaccine pause in reaction?
2| Added administration
If you mandate the COVID vaccine, you will need to create new processes and procedures to collect, track, and maintain the data. Medical information should be kept confidential and in a separate filing system. Consider policies for the employee who does not provide adequate proof or comply with the mandate. Include how you will identify and handle the entry of an employee without the COVID vaccine.
3| Compliance and managing exceptions
You will also need to remain compliant with the Americans with Disabilities Act (ADA) and Title VII. These laws require you to consider reasonable accommodations for employees who cannot or will not get the vaccine due to a disability or deeply held religious beliefs. These laws require employers to engage in and document communication with the employee to determine whether a reasonable accommodation is feasible. Be careful! The law also prohibits employers from asking certain health and genetic questions.
4| Unknown liabilities
Because the COVID vaccine was created in a relatively short time period, long-term side effects and adverse reactions are unknown. There is possible risk of exposing yourself to liability as an employer if you should mandate the vaccine and an employee experiences a negative reaction or bad side effects.
And, while the EEOC has stated in some cases that mandating the vaccine is acceptable for an employer, the Federal & Drug Administration (FDA) has only authorized the vaccine for emergency use. As a result, those vaccinated must be informed that they have the option to accept or refuse the vaccine. This may give employees a legal leg to stand on against a mandate.
5| The cost
If requiring the vaccine for work purposes, it’s good practice (although not required) that you cover the cost of the vaccine. This could mean paid time off to receive both doses as well as the cost of the vaccine itself. Ensure your organization has a keen understanding of the full financial impact and can absorb it.
6| Safety measures still apply
Even when employees are vaccinated, employers must provide PPE and other safety precautions like social distancing. Additionally, they must conduct health screenings prior to entering the workplace – such as temperature checks and questionnaire screenings. The cost to implement these safety precautions will not disappear for an employer mandating the vaccine.
7| Less complicated alternative options
Workplace accommodations that could eliminate or significantly reduce the risk of exposure to COVID-19 may prove less complicated for your company. For example, if your workforce can perform work duties remotely with little to no impact on the business, you may wish to consider taking that measure instead. After all, is the act of mandating the vaccine more work than implementing a remote work policy?
Every business has its own unique set of challenges, operations, and workforce. Employers need to make their own decision about mandating the COVID-19 vaccine for their employee base. Tandem HR highly encourages employers to discuss their specific situation with HR and legal counsel. For more additional information on the COVID-19 vaccine, read What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws published and updated by the EEOC.
These general comments are based upon current guidance and circumstances. Decisions regarding these issues are very fact-specific. Always take state and local law into account. This situation is very fluid and can change rapidly due to a variety of factors.