Can Employers Mandate the COVID-19 Vaccine?

Can employers mandate the COVID-19 vaccine?

The continued rollout of the vaccine has many employers planning to get workers back in the office. But navigating workplace safety and whether employers can and should mandate the vaccine brings up several questions.

The matter was discussed at length during a recent GovDocs webinar, What’s Up, 2021? A Look Ahead at Employment Law Trends.

The short answer? Yes. Federal guidance says employers can legally mandate workers get the vaccine in most instances.

Back to Work and the Vaccine

As COVID-19 restrictions begin to loosen across the country, vaccinating employees is “one of the biggest issues we’re seeing at this time,” said Kevin Mosher, one of the webinar panelists, a partner at Thompson Coe and founder of myHRgenius.

The big question is what strategy employers want to implement. Should companies mandate or simply encourage workers to get the vaccine? Publicize it?

The industry may play a role, as well. Employers with customer-facing workers, such as hospitality, for example, Mosher said.

“There’s just a lot that goes into it,” he said.

The practicalities of implementing a vaccine mandate can be complicated, said Dan Prokott, another webinar panelist and partner at Faegre Drinker Biddle & Reath LLP. Among them:

• It’s not widely available at this time
• Unions may want to make it a bargaining subject
• On-site vaccination clinics could open the door to privacy concerns
• Employees may refuse to get it
• Should employers give workers paid time off to get the vaccine?

Most often, Prokott said, employers are encouraging rather than mandating the vaccine — through education, financial incentives, and restrictions on those who don’t get it.

Encouraging Employees to Get the Vaccine

When encouraging workers to get the vaccine, employers have turned to cash incentives or gift cards, as well as extra paid time off.

But if an employer only encourages rather than mandates that workers get the vaccine, would a company really want to simply let some workers not get it? Senior leadership should discuss the matter, develop a strategy, and “stick to it,” Prokott said.

Also, employers that opt to mandate the vaccine should determine what happens when an employee refuses, he said. Termination? A leave of absence, partially unpaid? At a business level, employers should discuss their approach with senior leadership.

Meanwhile, employers that opt for financial incentives should also consider the potential for the need for further vaccinations in the future and how that may impact company policy.

Employees Who Refuse the Vaccination

Employers opting for a vaccine mandate should also be prepared to deal with other issues.

There are two exceptions that would allow an employee to refuse a vaccination:

• If someone has a disability that prevents them from getting it
• If someone has a sincerely held religious belief against it

In these cases, employers should engage in an interactive process to see if the worker can be reasonably accommodated, Mosher said. Even if it’s not possible, he said, “you should at least have that conversations with them.”

Plus, religious protections under Title VII of the Civil Rights Act are broad.

“These are difficult conversations to have when you start talking about someone’s belief system,” Mosher said.

Prokott echoed that sentiment. “That can be a perilous path to go down,” he said.

Conclusion

While the U.S. looks to be months away from getting all citizens vaccinated, employers preparing to reopen must develop a plan — and take careful considerations regarding the vaccine.

“It will really be a process, it’s not as simple as flipping a switch,” said Jana Bjorklund, GovDocs’ senior counsel, employment law.

Both employers and employees are antsy to get back to work. Having a preparedness plan in place for remote workers, taking into account local guidelines and restrictions, and developing a company policy regarding the vaccine will be paramount moving forward.

This Employment Law News blog is intended for market awareness only, it is not to be used for legal advice or counsel.