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by Mike Bishop J.D.

Dear Rita,

Our nonprofit has several employees who provide a variety of direct services personally to our clients, in our offices as well as other locations. We have taken great measures since the pandemic struck to protect both our clients and our employees and to keep them as safe as we possibly could.

Now that we are fortunate enough to have a vaccine available that we feel could protect our clients and employees to a greater extent, we are debating whether we should require employees to get vaccinated as a condition of employment.

Do you have any suggestions for us in helping us make our decision?

Safety First

Dear Safety,

The arrival of the Covid-19 vaccines is remarkably good news, but as with nearly every aspect of the pandemic that affects the workplace, the availability of the vaccine presents many complex questions and, still, much uncertainty in finding answers.

Before the pandemic, the subject of requiring employees to receive vaccines, for the flu, for example, was rather straightforward. If there was no regulatory or statutory requirement allowing this, the customary guidance was that an employer can strongly encourage, but not require, employees to get vaccinated.

With Covid-19, the need to prevent further spread of the virus is top priority, so the usual rules have been reconsidered.

The EEOC’s Guidance

The Equal Employment Opportunity Commission (EEOC) has affirmed that employers can require employees to be vaccinated against Covid-19, with certain limitations to be briefly covered here. Every employer considering requiring the vaccine should review this guidance in full: What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws.

To begin with, keep in mind that the Covid-19 vaccine may be required by local or state health authorities. Before you develop any policies for your company, you should research and analyze county, state, city, or local municipality requirements.

In addition, requiring vaccines is subject to possible exemptions, such as those that might follow from a specific medical condition or religious beliefs. If an employee seeks an exemption based on either of these, you are entitled to ask for documentation that supports this request. But requesting such an exemption does not mean the automatic granting of such exemption. If granting an exemption from vaccination, for example, would result in what the EEOC terms an “undue hardship” or a “direct threat” to the workplace because of the “significant risk of substantial harm to the health or safety of others that cannot be eliminated or reduced by reasonable accommodation,” then you can deny the request. Before making such a determination, you will want to conduct an individualized assessment of all the circumstances involved.

With respect to documentation, employers may also require employees to provide proof of having received the vaccine. The EEOC has determined that such proof does not constitute a prohibited “disability-related inquiry.” However, any such records, whether required or not, along with documentation of proof of receipt must be maintained confidentially.

To support these and other measures with regard to Covid-19 vaccination, make sure to set out a written policy on vaccines that provides recognition and acknowledgement of the ADA considerations set out by the EEOC.

While the EEOC guidance can provide a clear set of factors that lead you to the decision to require vaccines, there are practical and reality-based factors you should consider before imposing this requirement.

Here, for example, are several situations taken from real life:

  1. Leaving legitimate medical or religious accommodations aside, what will you do if your employees refuse to get vaccinated because they have a generalized fear of shots that dates to childhood?

  2. The fact that the current vaccines were approved quickly under the provision the FDA makes for “emergency use” often causes employees to question their safety. Employees may refuse to get vaccinated because they fear that these vaccines have not been fully tested and that the qualified approval means great risk.

  3. You have 25 employees. Twenty refuse to get vaccinated for various reasons.

 

Do you fire all these employees for refusing to follow the order to get vaccinated?

Ask yourself whether these situations justify termination of employment for failing to follow the requirement of receiving the vaccination or whether you should allow remote work. Despite the clear differences in the underlying reasons, would each of these refusals result in the same risk to health and safety if these individuals are allowed to return to work?

A Possible Middle Road

Unless public health orders or other mandates support the need for a policy requiring the vaccine, recent surveys suggest that most employers favor vaccination instead of requiring it. Such a policy eliminates the need to make difficult HR decisions such as evaluating requests for exemption and terminating or disciplining employees who refuse to comply with a vaccine requirement. An “encouragement” policy allows the employees to make their own decision, which, in light of the uncertainty that many individuals have about getting any of these vaccines at such an early stage of development, would allow them time to research, consult their medical providers, and wait as further progress on the availability and success of vaccines is made. Consult your counsel for how the policy should be drafted.

If you follow a policy such as this, you can address ongoing safety concerns by ensuring that appropriate measures such as social distancing and personal protective equipment are carefully and strictly followed as pertains to the type and size of the workforce. Employees who choose not to be vaccinated might still be permitted to work remotely, where possible, or be offered other options, including the ability to take a leave of absence. An approach such as this would reflect a sense of empathy and flexibility on the part of the employer, with employees retaining a measure of autonomy and sovereignty over their own healthcare choices.

Many employers have gone a step further and adopted incentive programs to encourage employees to get the vaccine. Such incentives typically include extra paid days off, paid time off to get the vaccination, and small cash or gift card rewards. These options would, in most cases, be appreciably better and more productive than losing a valued employee.

While the details of a vaccine policy remain with the employer, it is important to take into account legal and practical considerations so as to balance community safety with the impact on individuals. As with any such decision, given the personal and professional burdens the pandemic has created, a sense of empathy, flexibility, and perhaps most importantly, creativity, should also inform the ultimate decision.

Author Mike Bishop is a member of the State Bar of California and has been admitted to practice in a number of federal district courts in both California and Ohio.