Now that vaccines have been approved for emergency use and are being administered on a limited basis, most employers are faced with deciding what position they will take on it with their employees. Employers in a few industries – perhaps airlines, nursing homes, and meatpacking – may have this hard decision made for them to some extent by regulatory agencies. But the vast majority will need to ask: Are we going to require it now? Are we going to wait and see how it goes? Are we going to leave the decision totally to our employees? Are we going to encourage them to take it? Are we going to incentivize them to take it? These are tough business decisions. Your employees will want to know your position on the matter.
Legally, employers can require their employees to get a COVID-19 vaccination as a condition of employment. We could predict this would be the case based on EEOC guidance from the 2009 H1N1 pandemic. On December 16, the EEOC issued guidance specific to COVID-19 confirming the ability of an employer to mandate vaccination but with important, and fully anticipated, exceptions and caveats: https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws
What this means, in theory, is that it is possible for employers in non-union workplaces to insist that their employees be vaccinated, once vaccines are available; exclude them from the workplace if they refuse and aren’t eligible for an exception; and possibly terminate them for refusal after all alternatives are exhausted. If a union represents any of your employees, you would have to bargain with the union over a policy of requiring those employees to be vaccinated.
However, the harder question is SHOULD you require it. There are practical considerations that are causing an overwhelming majority of employers to adopt a “carrot” rather than a “stick” approach. That is, thoughtful employers are planning to strongly encourage, even incentivize, employees to get vaccinated rather than requiring it on threat of being fired. Here are just some of the many considerations:
- Exceptions to a vaccine requirement would have to be made for medical and religious reasons. Employees may say it is unsafe for them to take the vaccine due to an underlying health condition. Employees may also object based on a sincerely held religious belief. The law would require employers to review documentation and have extensive discussions with such employees to explore all available and reasonable accommodations to grant exceptions in these circumstances. The EEOC’s recent guidance does provide some helpful examples of accommodations to consider before terminating an objecting employee. Examples include allowing the employee to remain in the workplace but continue to wear PPE and social distance. Managing and deciding when exceptions need to be made would prove challenging.
- Forcing the vaccine on employees could have a negative impact on morale. Recent polling shows the country is evenly split on whether individuals plan to get vaccinated. Polling also shows that trust in the vaccine decreases in the eyes of many if they are forced to take it. In the age of HIPAA, there is a stronger feeling that health decisions should be personal and private. People are quicker to bristle at being told what to do on matters of health in contrast to how things were in the era of the Polio epidemic. There is also a strong level of distrust in the COVID-19 vaccines among minorities due to the exploitation of African Americans in the Tuskegee Syphilis Study. A forced vaccination policy could cause employees in a non-union setting to suddenly consider union representation, which could ultimately lead to a campaign and election.
- There are administrative issues associated with a mandatory vaccine policy. How would the employer keep track of who has received the vaccine and whether employees have received both doses? Who will pay for the vaccine, if it is not covered by insurance or government program? Where will employees be vaccinated? When would employees be required to be vaccinated, and will there be an adequate vaccine supply at that time? If an employee experiences side effects from the vaccine, will they be given paid time off?
- Requiring the vaccine could expose employers to liability in the event employees experience significant side effects. The flip side of that coin, however, is the failure to mandate the vaccine could also result in claims by employees who contract the virus and believe they would have been safer if their employer required it of all employees. In either scenario, an employer’s exposure to its employees should be to workers comp and not riskier tort liability. Liability exposure to customers who claim they contracted the Virus at your business (hard to prove) is also a consideration.
If you decide against mandating a vaccine (at least for now), you can certainly educate your employees about the available vaccines and encourage them to take it. We can expect a national public health campaign along these lines, and employers can play a vital role in this national effort.
It is also legal to incentivize employees to get vaccinated, within limits. If your company already has a wellness plan, explore whether you can incorporate vaccination against COVID -19 into that plan. Some employers are considering gift cards and drawings to win prizes for those who get vaccinated. You could offer a reward to all employees if your company achieves a target vaccinate rate, say 95%. There are some limits on the size of legally permissible incentives and some incentives are taxable to the employee (requiring withholding by the employer). If the incentives are too lucrative or punitive, then your program may morph into a mandatory and not voluntary policy. However, these issues are manageable such that incentives are a viable and good way to dangle the carrot to nudge employees to vaccinate. Just making it as easy as possible for employees to get vaccinated may be enough, such as providing the opportunity to get vaccinated at work and paying the cost of the vaccine for your employees. Like a company-sponsored blood drive, employees may feel peer pressure to participate in the cause if there is a common goal to achieve.
A survey of your employees may prove useful in deciding how to approach the vaccines. There is polling data available now. However, a poll of your own workplace may prove more useful and show your employees that you are taking their views into account as you try to settle on a policy that is best for your workplace.
Regardless of what you initially decide – and your position may evolve – your employees will want to know where their employer stands. We recommend you communicate what you are thinking as an employer about the vaccine and what your employees should consider in making their own decisions.
Our labor and employment and healthcare lawyers are staying informed on this issue and are helping our clients decide what is best for each of them. One size does not fit all. There is room for creativity. Let us know if we can help.
-Written By: Trip Umbach
We are available to address your individual circumstances and questions.
Trip Umbach 205-868-6072 or tumbach@starneslaw.com
Breanna Young 205-868-6020 or byoung@starneslaw.com
Amber Whillock 205-868-6078 or awhillock@starneslaw.com
Reed Bates 205-868-6080 or rbates@starneslaw.com
Rick Harris 334-669-3433 or rharris@starneslaw.com
Weathers Bolt 251-445-4718 or wbolt@starneslaw.com
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