Update on September 18 2021: As part of his Path Out of the Pandemic Plan, President Biden has instructed OSHA to develop a rule for businesses with over 100 employees: this rule will mandate vaccines for all workers.
Update on August 24, 2021: The Pfizer vaccine has now been fully approved by the FDA.
As an employer, you may be wondering how to navigate a COVID-19 vaccine policy that protects your employees as they return to work. With the rise of the COVID-19 Delta variant, an increased number of employers are considering mandating COVID vaccinations in the workplace: a survey conducted by a national employment law firm found that 43% of employers were considering this option in February—and that number has skyrocketed since recent vaccine guidance has been released by the Department of Justice (DOJ).
To learn more about government guidance and how to make the best decision for your team, keep reading.
Can I legally require my employees to get the COVID vaccine before returning to work?
Within the U.S., the short answer is yes—you can require your employees to receive a COVID-19 vaccine prior to returning to the workplace. Also, the Occupational Safety and Health Administration (OSHA) is currently developing a rule that will require employers of over 100 workers to mandate vaccines for their teams (we’ll let you know when that rule is written and passed).
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-19 vaccine before returning to work.
Additionally, the federal government has provided guidance detailed below.
Federal guidelines from the DOJ
There have been a number of activities at the federal level you should know about:
On September 9, 2021, President Biden released his Path Out of the Pandemic plan which includes a section called Vaccinating the Unvaccinated. Within this section, the president instructs OSHA to develop a rule for businesses with over 100 employees. These businesses will be required to mandate the vaccine for all of their workers. The rule has not yet been created, but we’ll keep you posted.
On July 26, 2021, the DOJ released guidance explicitly stating that “federal law does not prohibit public or private entities from imposing vaccination requirements for vaccines that are subject to emergency use authorizations from the U.S. Food and Drug Administration.” (Just a little background to clarify here: the FDA has approved the COVID-19 vaccine under an Emergency Use Authorization, but as of August 24, 2021, only the Pfizer vaccine has been fully approved by the FDA—but the other vaccine brands have not yet been approved. However, that no longer matters, because according to this guidance by the DOJ, full FDA approval is not required for a vaccine mandate within public and private organizations.)
Federal guidelines from the EEOC
Additionally, on May 28, 2021, the U.S. Equal Employment Opportunity Commission (EEOC) issued its own guidance stating mandating the COVID-19 vaccine for employees does not violate anti-discrimination laws.
However, it’s important to note that the EEOC does remind employers to consider sincerely held religious objections or disabilities that may prevent employees from receiving the vaccine. Those employees should be provided with reasonable accommodations (like remote work, a physical workspace that allows distance, and/or a medical leave of absence) and may be subject to regular testing. (We get into greater detail on how to handle vaccine objections below.)
A change in OSHA requirements
OSHA guidance has shifted considerably over the past few months. Here’s a timeline:
In April of 2021, OSHA had stated that employers were required to record any adverse reactions experienced by employees who received the COVID-19 vaccine.
On May 22, 2021, OSHA shifted this position significantly to this:
“DOL and OSHA, as well as other federal agencies, are working diligently to encourage COVID-19 vaccinations. OSHA does not wish to have any appearance of discouraging workers from receiving COVID-19 vaccination, and also does not wish to disincentivize employers’ vaccination efforts. As a result, OSHA will not enforce 29 CFR 1904’s recording requirements to require any employers to record worker side effects from COVID-19 vaccination through May 2022. We will reevaluate the agency’s position at that time to determine the best course of action moving forward.”
What does that mean? Through May of 2022, employers are no longer required to record any adverse employee reactions to the vaccine. This is a part of the federal government’s efforts to encourage vaccinations throughout the country.
On September 9, 2021, the president instructed OSHA to start developing a rule for businesses with over 100 employees that will require them to mandate vaccines for all of their workers.
Now that you’re up-to-date on at-will employment and federal guidelines, what else do you need to consider?
There are several other considerations, both legal and practical to think about; these include:
- 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? Fortunately, employers who offer paid time off to employees to receive the vaccine (or to recover from adverse effects of the vaccine) will receive the vaccine tax credit.
- 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.
This is an ever-evolving landscape. Employers would be wise to seek appropriate guidance from an attorney or HR professional on whether to institute a mandatory vaccination policy.
What kind of mandatory vaccination policy is appropriate?
The word to remember here: consistency. Create a policy that is consistent for all employees; 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 receive the vaccine based on non-employment factors (like age or underlying health). A policy that is based on non-employment factors 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: 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.
Do I need to give employees paid time off or sick leave to get the vaccine?
As of September 9, 2021, OSHA is developing a rule for businesses with over 100 employees that will require employers to offer paid time off for workers getting the vaccine or suffering from vaccine side effects. That rule has not been written yet, but we’ll keep you posted.
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. A federal tax credit is available to employers (with fewer than 500 employees) who provide employees with PTO to receive the COVID-19 vaccine.
Can an employee refuse to get vaccinated due to a disability or a sincerely held religious belief?
Employers are generally required to reasonably accommodate employees with disabilities and employees with sincerely-held religious beliefs or practices.
An employer cannot exclude an individual who cannot be vaccinated due to a disability from the workplace unless the employer can demonstrate:
- 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 analyzing several factors, including:
- The nature of the risk
- How long the risk will exist
- The severity of the risk and the potential harm
- The likelihood of potential harm
Even then, the EEOC has cautioned that an employer cannot automatically exclude someone from the workplace unless making a reasonable accommodation is not possible. And that may be difficult to prove.
What’s reasonable accommodation?
Employers must make accommodations for employees who refuse to be vaccinated due to sincerely-held religious beliefs or disabilities (which include underlying health conditions). These accommodations should protect the employee without causing undue hardship on the employer.
This can include:
- Allowing an employee to work remotely
- Providing the employee with an area to work that is socially distanced from others
- Providing masks for the employee (consider offering medical-grade N95 masks to unvaccinated employees)
- Using barriers to reduce exposure
What if an employee refuses to get vaccinated based on personal beliefs?
Employers are generally not required to accommodate employees based on personal needs or beliefs. In other words, if an employee cannot appropriately claim a need based on disability or religious grounds, it is the employer’s choice 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. The best thing you can do is consult an employment lawyer before deciding whether to require your employees to be vaccinated.
Some companies are requiring that non-vaccinated employees be masked or get regular tests as part of the reasonable accommodation.
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 raise their own legal considerations. For example, previously released EEOC guidelines suggested that employers keep vaccine incentives to de minimis (a fancy Latin word for insignificant or unimportant) gifts, such as “a water bottle or gift card of modest value.” There may also be wage and hour concerns, particularly if the incentive is so high that employees feel coerced into getting vaccinated.
If you want to offer incentives to employees who get vaccinated, consult an attorney or an HR professional on how best to keep the incentives low-value.
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.
Which organizations have implemented vaccine mandates?
The list is growing every day, but a few private companies that are requiring employees to be vaccinated include:
- Tyson Foods
Additionally federal government employees will be required to show proof of vaccination or abide by regular testing, mask mandates, and/or social distancing. Certain states (like New york, California, and North Carolina) are also requiring that state employees get vaccinated.
The decision to require your employees to get vaccinated before returning to the workplace is a challenging one. If you decide to adopt a mandatory vaccination policy, you will have to make sure your policy is not discriminatory and allows for medical and religious exemptions. If you are considering dismissing or taking disciplinary action against an employee for failing to get vaccinated, consult an employment lawyer. Finally, you’ll want to consider your own company culture and what the most productive action for your company would be. If you have further questions or are deciding whether to mandate vaccines, we recommend consulting with legal counsel or an HR professional to help you make a final decision as to if this course of action is right for your company.