Addressing the COVID-19 Vaccination with Your Employees
by Jennifer S. Hagerman
A company may require its employees to be vaccinated for COVID-19, but the policy must include exceptions for disabilities and religious beliefs. Even though an employer may make the vaccine mandatory, it does not mean that is the best course of action. Most employers are stopping short of a mandatory vaccine and focusing on “strongly encouraging” employees to get the vaccine for several reasons. First, the vaccine is new and not currently widely available. It is unclear when the vaccine will be available to everyone (current estimates range from 6 months to 3 years). Second, with all the misinformation about vaccines in general and this vaccine in particular available on the internet, there is a risk that a significant portion of employees may refuse the vaccine without a valid legal reason, thereby forcing the employer to make the painful decision about whether to terminate those employees in order to enforce the policy. Third, tracking compliance with a vaccine requirement will be administratively burdensome, due in part to the exceptions discussed below, and poses certain logistical challenges. Finally, administering the vaccine requires gathering confidential medical information, which employers are prohibited from gathering unless the inquiries are work related or consistent with a medical necessity, so a company’s best course of action is to rely on third parties to administer the vaccine. If an employer elects to strongly encourage employees to get the vaccine rather than making it mandatory, then one option is to provide incentives for employees to get the vaccine, such as covering any out-of-pocket costs involved and giving them paid time off to receive the vaccine and recover from any possible side effects.
If an employer decides to require the vaccine, then we strongly recommend the adoption of a written policy that clearly sets forth the process for addressing objections to receiving the vaccine by individuals with disabilities under the Americans with Disabilities Act and for religious reasons under Title VII of the Civil Rights Act. If an employee cannot be vaccinated due to a disability, then the company is required to first determine whether the unvaccinated employee would pose a direct threat due to a significant risk of substantial harm to the health and safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation. This will require reviewing the employee’s position and job duties and determining what accommodations, if any, could be made to allow the unvaccinated employee to continue to work. If, after careful consideration of all the possible accommodations available, like wearing a mask or moving to an open job in which the employee would not pose a direct threat, the employer determines that there is no accommodation available that would eliminate the direct threat, the employer has the ability to terminate the employee. If the employee refuses to be vaccinated due to a sincerely held religious belief, practice or observance, then the employee’s objection should be addressed under the same analysis as with disabilities, unless the accommodation places an undue hardship on the employer. The religious exception does not include objections based on an employee’s belief that the vaccine will place him under government control, or that the vaccine is not effective, is unsafe, or hasn’t been sufficiently tested. An employee who does not have a legally recognized reason to refuse the vaccine but still refuses may be terminated.
It is important to note that the vaccine policy must apply to all employees, so employers are encouraged to ensure that all the key employees are willing to get the vaccine. Employers may not make exceptions other than for religious and medical reasons as discussed above. For example, if an employer makes an exception for one high level key white male employee who does not have a disability or religious basis to refuse the vaccine, then it would have to make exceptions for other employees. Finally, if employees are covered by a collective bargaining agreement (CBA), then a mandatory vaccination would be a condition of employment that may need to be the subject of bargaining with the union. Please let us know if our employment law team may assist your company with any questions or concerns regarding COVID-19 vaccine policies or procedures.