How Should Employers Address COVID-19 Vaccine Requirements?

As the coronavirus rages on, and vaccines continue to become more widely available across the country, employers and businesses are starting to consider a major decision ahead: 

Can you—and should you—require your employees to get the COVID-19 vaccine?

While legally the answer is “Yes you can, with conditions” recent opinions and research on the topic show that a different approach might be more successful.

Let’s start here: What does the EEOC say?

The U.S. Equal Employment Opportunity Commission will allow employers to make the choice to mandate COVID-19 vaccine, just like the flu and other vaccines. However, employers must be prepared to exempt employees with disabilities and religious objections. And in those cases, it’s up to the employers to offer a reasonable accommodation to the employee who chooses not to vaccinate—such as working remotely or being reassigned—as long as the accommodation doesn’t cause “undue hardship” for the employer.
 
With vaccination availability being so new, it’s likely the definition of what makes you exempt, or what includes reasonable accommodations, will be challenged with litigation in the years ahead. It is important to remember that guidance from public health authorities is likely to change as the COVID-19 pandemic evolves. Therefore, employers should continue to follow the most current information on maintaining workplace safety on the eeoc.gov/ website.

Sounds logistically vague. What kinds of businesses would mandatory vaccination be good for?

Obviously, those businesses who’ve made a shift to mostly remote working for their staff might not see a need to require workers to become vaccinated. But companies that rely on their onsite essential workers to run smoothly—like those who work with sick or elderly, teachers and faculty, the hospitality and food industry, and manufacturing facilities—will be strongly considering making the COVID-19 vaccine a requirement.
 
“Employers have never before had to manage a workforce in the wake of a pandemic. Employers want to provide a safe work environment. Many have allowed remote work, when they can, but there are many circumstances in which employees need to be present in the office or on the worksite,” said Erin Jackson, co-founder of Johnson Jackson employment defense law firm.
 
“Employers will do what they can to safely open their doors and serve their customers, while still protecting their employees,” Jackson also added.
 
The choice to make vaccinations mandatory is left solely up to employers, but those deciding to take the mandated route need to make sure a detailed written policy is in place before the program is launched to employees. When creating a vaccine policy, employers should also take into account local and state laws, and bear in mind that their right to mandate vaccines may be altered when dealing with unionized employees.

Let’s see the stats. How are employees feeling about all of this?

​According to this Pew study, about 59% of Americans say they would get a COVID-19 vaccine if it were available today, up from 51% who said so in September of last year. But only 1/3 of people said they are "extremely confident" that the first available vaccines will have been properly tested for safety and effectiveness. And another 1/3 said they are "not confident at all."

When it comes to work-mandated vaccines, another new survey from outsourcing firm Sykes reveals more than half (54%) of Americans think employers should be able to require non-remote employees to receive a COVID-19 vaccine. And 24% of employees said vaccinating should be a requirement for returning to work.
 
On the other hand, this new survey from Perceptyx says about 43% of employees say they would not only disapprove of their employer forcing them to get vaccinated, but they would consider leaving their organization if the vaccine was a requirement.

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Here's a snapshot on demographics offered by the Associated Press.

AGE
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People age 60+ (62%) are more likely to get vaccinated than those under 45 (36%). 
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GENDER
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Men (55%) are more likely to get vaccinated than women (40%)

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RACE
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White Americans (53%) are the most likely to vaccinate, followed by Hispanic Americans (34%) and Black Americans (24%)

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Lots of different views. How can we inclusively keep employees safe and everyone happy?

Experts continue to say that given all the different apprehensions still out there about the pandemic and vaccine, many employers will choose to simply encourage their workforce to get immunized, rather than making vaccination a condition of employment.
 
There are many ways employers can take steps to encourage safety and vaccinations, including offering incentives.

According to the same Perceptyx survey, 60% of respondents who did not support mandated vaccinations said they would vaccinate if their employers offered a monetary incentive of $100 or more to do so. (An employee who can’t be vaccinated due to disability would need to be offered an alternative way to earn the reward. Without an alternative, employers could be accused of discrimination.)
 
There are no current regulations on the type of incentives employers can offer, but the EEOC warns that like other wellness activities, incentives should not be so high that employees feel coerced to disclose protected medical information for a reward. The decision to take a vaccine is personal and should not involve tremendous outside influences. 
 
Paid time off to get the vaccine shots and additional unlimited paid time off if employees experience side effects or symptoms from receiving the vaccine are two incentives that should always be considered in your policy.

How do I show employees that their health and wellbeing matters to our organization?

Whether you decide to mandate or encourage vaccines in the coming year(s), ongoing communication is vital to making sure employees understand the policy, procedures and cultural views that belong to the organization.

Communicate often, be factual, but don’t forget to message with kindness – employees are dealing with an overwhelming amount of skepticism and misinformation, as well as anxiety and stress over this complicated and deeply personal issue. The more forcefully something is mandated, the more resistance you may get from employees who are still trying to figure out how they feel.
 
And lastly, the top level of your organization should always lead by example - the decision of company leaders to vaccinate will have a direct effect on the decisions your employees make. Employers that showcase healthy behaviors, attitudes, and habits (like receiving a vaccine) can inspire others in their workforce to do the same.

 
Kate Grooms
Chief Engagement Officer, Grooms Benefits
kgrooms@groomsbenefits.com
 
 
The information provided here does not, and is not intended to, constitute legal advice; all information, content, and materials are for general informational purposes only.