Recently, the Biden administration implemented strict rules for federal workers concerning COVID-19 vaccinations, testing and masking. Federal workers will be required to sign forms attesting they’ve been vaccinated against the coronavirus or else comply with new rules on mandatory masking, weekly testing and social distancing. Biden has also directed the Defense Department to consider adding the COVID-19 vaccine to its list of the 17 required vaccinations for those in the military. Biden stated he hopes these measures will set an example for private industry and help put an end to the sluggish pace of vaccinations. Recent data shows 50% of Americans have received at least one of their COVID vaccinations, well short of the July 1st 70% goal Biden set earlier in the year. In the wake of this unprecedented step concerning federal workers, some big employers have issued their own vaccine mandates. In recent days, companies from Arkansas-based Walmart Inc. to Microsoft Corp. in Seattle have imposed vaccine mandates mostly on white-collar workers returning to offices. Google, Tyson Foods, United Airlines and Disney have also taken similar steps. There are many issues to consider when mandating vaccinations in the workplace, and here are some of your questions answered. As always, the following is guidance and not a substitute for legal advice.
Can I Mandate Vaccines In My Workplace?
Private employers who want to require employees to get a COVID-19 vaccine can do so with little legal risk if they comply with applicable federal and state laws. The Equal Employment Opportunity Commission (EEOC) has weighed in by stating federal anti-discrimination laws don’t prohibit employers from requiring all employees who enter the workplace to be vaccinated for COVID-19. Those that do mandate vaccinations must ensure they comply with the Americans with Disabilities Act (ADA) and Title VII of the Civil Rights Act of 1964 and any pertinent state law.
How Do I Handle An Employee Who Refuses To Get Vaccinated, In Violation Of Our Mandated Vaccine Policy?
Employers that mandate the vaccine must be prepared to terminate, or otherwise address, employees who refuse to get the vaccine. Under the ADA, there are steps an employer must take for an employee who refuses to get vaccinated because of a disability. The employer must first determine if the employee poses a “direct threat” to others in the workplace by being unvaccinated. The EEOC defines a “direct threat” as a “significant risk of substantial harm that cannot be eliminated or reduced by reasonable accommodation.” The EEOC states employers should evaluate four factors to determine whether a direct threat exists:
- The duration of the risk.
- The nature and severity of the potential harm.
- The likelihood that the potential harm will occur.
- The imminence of the potential harm.
If an employee who cannot be vaccinated poses a direct threat to the workplace, the employer must consider whether a reasonable accommodation can be made. The employee and employer should work together to determine what, if any, reasonable accommodation could be made. This interactive process should consider the employee’s job functions and whether requiring a face mask, social distancing, modified shifts, telework or work reassignment might work.
Title VII requires an employer to accommodate an employee’s sincerely held religious belief, practice or observance, unless it would cause an undue hardship on the business. An “undue hardship” is created by an accommodation that has more than a “de minimis,” or very small, cost or burden on the employer. “Religion” is hard to define and, therefore, protecting one’s religious beliefs and practices can be challenging. For that reason, the EEOC states the employer “should ordinarily assume that an employee’s request for religious accommodation is based on a sincerely held religious belief.” The EEOC continues by stating, “However, if an employee requests a religious accommodation, and an employer is aware of facts that provide an objective basis for questioning either the religious nature or the sincerity of a particular belief, practice or observance, the employer would be justified in requesting additional supporting information.”
What If No Reasonable Accommodation Can Be Made?
If an employee cannot get vaccinated because of a disability or sincerely held religious belief, and there is no reasonable accommodation possible, an employer can exclude the employee from physically entering the workplace.
Should The Mandated Vaccination Policy Make An Exception For Employees Who Have Had COVID-19 And, Therefore, Should Have The Antibodies To Prevent Them From Getting It Again?
The Centers for Disease Control and Prevention (CDC) states that people should be vaccinated regardless of whether they have already had COVID-19. It is unclear how long antibodies protect a person who has had COVID-19, therefore, a vaccination mandate should apply to all employees regardless of whether or not they’ve had COVID-19. As part of the vaccine mandate rollout, employers should educate employees and raise awareness about the benefits of vaccination even for those who have been previously infected.
Can I Terminate An Employee Who Refuses To Get The Vaccine?
Religious and disability exemptions aside, an employer in an at-will state can terminate an employee at any time with or without cause. Refusing to adhere to a vaccine mandate policy is grounds for termination. In the EEOC’s guidance issued earlier this year, an employer can terminate an unvaccinated employee if that person “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.” The guidelines are similar for those with a religious exemption. The guidance states, “If an employee cannot get vaccinated for COVID-19 because of a disability or sincerely held religious belief, practice, or observance, and there is no reasonable accommodation possible, then it would be lawful for the employer to exclude the employee from the workplace.”
What Steps Should I Take Before Mandating The Vaccine?
Employers should not abruptly email employees telling them they must be vaccinated. Here are some best practices to follow before issuing the mandate:
- Involve legal counsel in the vaccine mandate process, ensuring all federal, state and local laws are being followed. .
- Draft a clear, written policy concerning the vaccine mandate. .
- Include the vaccine mandate as part of a company-wide awareness and educational campaign about the benefits of vaccination with answers to commonly-asked questions and information on local vaccine sites and low-cost transportation to sites. .
- Ensure managers are training on how to handle an employee who refuses to get vaccinated. .
- Provide paid time off from work to obtain the vaccine and to recover from any side effects from getting the vaccine. .
- Consider covering any costs associated with getting the vaccine. .
- Decide whether to require proof of vaccination, and, if so, ensure this information is kept in the employee’s confidential medical file. .
- Continue to monitor EEOC guidance on COVID-19 vaccine mandates.
Stay Smart With Smart HR
Employer-mandated vaccines can be tricky with missteps resulting in running afoul of federal and state laws. However, with careful and thoughtful planning, employers can make vaccines mandatory in the workplace. Smart HR can guide you through this process from working with leadership on developing a clear policy to assisting management with any employee relations issues arising from the policy. Get smart and stay smart with Smart HR.