As states ramp up COVID-19 vaccine distribution, we appear to be getting closer to returning to the workplace. However, as an employer, you may be left wondering how to safely re-open your office while protecting your employees. You may be considering mandating COVID vaccinations before a return to in-person work. If so, you are not alone–a survey conducted by a national employment law firm found that 43% of employers are also considering this option.
Further, some of your employees may be concerned about returning to work if other employees are unvaccinated. The decision to require employees to receive the COVID vaccines is challenging from both a legal and business standpoint. Luckily, there are guidelines you can follow to safely and effectively re-open your workplace. It is always a good idea to consult with an attorney or an HR professional to help determine what your business may or may not do. Ultimately, it will largely depend on your specific situation.
Can I legally require my employees to get the COVID vaccine before returning to work?
At least in the U.S., the short answer appears to be yes–you likely can require your employees to receive a COVID vaccine prior to returning to the workplace. Generally, private employers that subject employees to at-will employment have broad discretion to dismiss workers for not adhering to workplace policies. Therefore, a private employer could reserve the right to terminate at-will employment if an employee refused to receive the COVID vaccine before returning to work. Recent guidance from the US Equal Employment Opportunity Commission (EEOC) does not explicitly state that mandatory vaccination policies are lawful. However, the guidance supports the overall conclusion that a mandatory vaccination policy is not unlawful, per se.
That said, this is an ever-evolving landscape. Employers would be wise to think carefully and seek appropriate guidance on whether to institute a mandatory vaccination policy. For example, employers will need to consider accommodations for employees with a bona fide disability or employees with sincerely held religious beliefs (more on this below). Beyond this, there are several other considerations, both legal and practical to think about. The legal considerations include:
- OSHA standards, both federal and state;
- The impact of state or local laws on vaccine programs: Some states are considering legislation that would prohibit employers from requiring vaccines as a condition of employment;
- Wage and hour requirements: For example, if you mandate vaccination, are you required to pay non-exempt employees for getting vaccinated?
- How to handle situations where an employee has an adverse reaction to a vaccine
And the more practical things involve complex employee relations issues to consider, such as:
- Whether it’s practical to require vaccination based on local availability,
- Who you will require to get vaccinated (do you require certain employees to be vaccinated, such as those who are in customer-facing jobs?),
- How you may collect and store information on whether someone is vaccinated,
- How long proof of vaccination is good for, and
- Whether mandating vaccines is right for your particular business and culture.
Do I need to give employees paid time off or sick leave to get the vaccine?
Depending on which state you are located in, you might be required to. For example, all New York-based employers must give employees paid vaccination leave, to a maximum of four hours per injection. Other states, such as Illinois, have issued guidance recommending but not requiring paid vaccination leave.
If your state does not require paid vaccination leave, it is still a good idea to consider giving employees additional PTO or sick leave if you are mandating vaccination. The Biden Administration recently announced its intention to introduce a credit to help employers with fewer than 500 employees support paid time off to receive and recover from COVID-19 vaccinations.
What kind of mandatory vaccination policy is appropriate?
It is important to remember that your workplace policies cannot be discriminatory. Any policy that mandates vaccination before resuming in-person employment must treat all similarly situated employees equally. It is okay, though, to require only certain employees to receive the vaccine before returning to work. This classification is acceptable as long as it is reasonably related to the duties of the job.
However, an employer cannot require that only certain employees based on non-employment factors–such as high COVID risk individuals–receive the vaccine. This policy does not treat all similarly situated employees equally because high-risk COVID patients tend to be those who are 65+ and/or individuals with underlying health conditions. Therefore, a vaccination policy that singles out high-risk individuals or is based on an individual’s health status would be discriminatory based on age and health status.
For example, an employer may require that only the employees prioritized for in-person work must be vaccinated, while employees that will remain remote are not required to get vaccinated. This policy distinguishes between a valid employee class–i.e., those who work in-person versus those who work remotely. Additionally, the requirement based on employee class is reasonably related to the duties of the job. In-person employees are at greater risk of spreading or contracting COVID in the workplace than remote workers. There is no distinction made on those individuals’ personal health, such as pre-existing conditions or age.
Can I ask an employee about their vaccination status?
Likely yes. If you choose to implement a mandatory vaccination policy, it is legally permissible to ask an employee whether they have received the COVID vaccine. Further, it is legal to request that employees furnish proof of vaccination because simply confirming vaccination status is unlikely to elicit information about an employee’s disability status. Asking any questions beyond mere vaccination status–such as why an employee has not yet been vaccinated–is not recommended. Those questions are more likely to elicit disability-related information.
In addition, employers who administer a vaccine program themselves or directly contract with a third-party to provide vaccinations also face additional legal obligations. Under current CDC guidance, healthcare providers that administer vaccines are encouraged to ask screening questions to ensure there is no medical reason that would prevent someone from getting a vaccine. These screening questions are likely to elicit disability-related information. Therefore, they must be job-related and consistent with business necessity before an employer or a third-party contracted by the employer may ask them.
Can an employee refuse to get vaccinated due to a disability or a sincerely held religious belief?
As an employer, you are generally required to reasonably accommodate employees with disabilities and employees with sincerely held religious beliefs or practices.
Before excluding an individual who cannot be vaccinated due to a disability from the workplace, however, employers will need to show:
- That the individual poses a “direct threat” due to a “significant risk of substantial harm” to the health or safety of themselves or others, and
- The situation cannot be addressed by reasonable accommodation.
This requires an analysis of factors such as the duration of the risk, nature, severity, likelihood, and imminence of the potential harm. Even then, the EEOC has cautioned that an employer cannot automatically exclude someone from the workplace unless there is no way to reasonably accommodate them in a way that would eliminate or reduce the direct threat. For example, an accommodation may be having the employee wear medical-grade N95 masks while at work.
Similarly, under Title VII of the Civil Rights Act of 1964, employers must provide accommodations for an employee’s sincerely held religious beliefs regarding vaccines. While the standard differs and is less stringent than that under the Americans with Disabilities Act, the inquiry is still intended to be individualized, fact-based, and interactive between the employer and employee.
What if an employee refuses to get vaccinated based on personal beliefs?
If an employee cannot appropriately claim a need for a disability or religious accommodation, you are generally not required to grant accommodations based on other personal needs or beliefs. In other words, if an employee refuses to get a vaccine for personal reasons, it is ultimately your choice as an employer whether to accommodate that choice.
However, the decision to dismiss or discipline a non-exempt employee who refuses to comply with your mandatory vaccine policy is a challenging one. Not to mention, there is always the possibility that an employee could take legal action following dismissal or disciplinary action. Indeed, lawsuits have already been filed over mandatory vaccine policies. We recommend consulting an employment lawyer before making a decision of this nature.
Can I use incentives or other perks to encourage employees to get vaccinated?
If you are not considering a mandatory vaccine policy for your employees, you may still want to encourage them to get vaccinated voluntarily. One way to do this is through incentives, gifts, or other employee perks. However, incentives also raise their own legal considerations. For example, previously released EEOC guidelines suggested that employers keep vaccine incentives to de minimis gifts, such as “a water bottle or gift card of modest value.” Please note that the EEOC has since suspended the guidelines per the Biden administration’s call for a regulatory freeze. There may also be wage and hour concerns, particularly if the nature of the incentive is so high that employees feel coerced into getting vaccinated.
If you decide to offer incentives to employees who receive the vaccine, it is best to keep the incentives to a low-value so as to not be coercive. If you would like to provide an incentive to employees or their families to get vaccinated, consult an attorney or an HR professional to ensure you are within the de minimis allowance.
Could mandatory COVID vaccine policies be prohibited?
It is entirely possible that mandatory vaccine policies will be banned in some states. Although federal legislation to prohibit requiring vaccines in the workplace is unlikely, states could pass their own laws regarding mandatory vaccination policies. There is already some legislative action in certain states, such as North Dakota and Indiana, to ban mandatory vaccination policies. Therefore, your ability to require your employees to get vaccinated before returning to work could change in the coming months.
So even I can require vaccines, should I?
Requiring employees to get a COVID vaccination is also a difficult business decision, not just one of legality. Regardless of a personal choice to be vaccinated, some employees may see a requirement as being too heavy-handed and be contrary to company culture. Each company will have a different approach as to if and why they would want to mandate employees receiving a COVID vaccine. It is important to consider your own company’s internal culture and how employees interact with each other and customers or clients.