CLIENT ALERT:
Should You Require Your Employees to be Vaccinated for COVID-19?
With more employees returning to the workforce in person, employers are faced with several decisions, including whether to implement a mandatory COVID-19 vaccination policy. Initially, this policy may seem like the right thing to do. In fact, many large companies and universities have already instituted mandatory vaccination policies. However, even if you can mandate vaccinations in your workplace, that does not necessarily mean you should.
Here is why:
• The EEOC (Equal Employment Opportunity Commission), which is the national governing body for employment-related issues, has not yet expressed a final opinion on requiring vaccinations for COVID-19. While the EEOC has indicated that employers may institute a mandatory vaccination policy, it has cautioned/expressed concerns about such a policy due to potential disparate impact implications.
• Lawmakers in more than 40 states are currently seeking to prohibit mandatory vaccinations in the return-to-work context. In Washington alone, there are 4 House Bills and 1 Senate Bill pending that would ban mandatory COVID-19 vaccinations (HB 1065, HB 1305, HB 1570, and SB 5144).
• The U.S. Food and Drug Administration (FDA) has only issued an Emergency Use Authorization (EUA) for COVID-19 vaccinations and has not yet approved them past the EUA stage.
Thus, it may be worth waiting to institute a mandatory COVID-19 vaccination policy until there is a final determination from the EEOC, FDA and/or Washington State regarding the proposed legislation to ensure that you do not violate, or have not violated, any laws or regulations. Doing so would allow you to protect yourself against litigation that could arise.
Additionally, there may be implications on the following through with a mandatory vaccination policy. For instance, you would need to have a plan in place, or consequences, for employees who refuse to comply with the policy. Typically, violations of company policies result in termination. Currently, the national trend is showing that 35.8% of the country’s population is fully vaccinated. Taking that figure into consideration, what would you do if you implement a mandatory vaccination policy and only 36% of your employees comply? Are you prepared to lay off the other 64% of your employees for failing to comply with the policy? Regardless, any time an employer implements a policy, it must follow through with the consequences for violations of that policy evenly. Otherwise, inconsistent implementation would create a risk of claims for unfair or unlawful treatment in the workplace.
Moreover, there may be legitimate reasons why employees will not, or cannot, get vaccinated such as religious preferences, medical reasons, and issues including whether an employee is pregnant or immuno-compromised. If an employee has a disability as defined under the Americans with Disabilities Act (ADA), for example, that prevents her from getting vaccinated, then the employer must provide that employee with a reasonable accommodation such as modifying the employee’s workspace to allow for increased social distancing and providing personal protective equipment (PPE) unless providing the accommodation will cause an undue hardship to the employer’s business. Similarly, if an employee has a sincerely held religious belief that prevents her from getting vaccinated, an employer must also provide accommodations that will not impose an undue hardship on the employer.
Finally, although mandatory vaccinations are not considered a medical examination under the ADA, employers must be cautious when asking any pre-vaccination screening questions because those questions could elicit information about an employee’s disability or genetic information, implicating the ADA and/or Title II of the Genetic Information Nondiscrimination Act (GINA). However, pre-vaccination screening does not implicate those provisions if the vaccination is administered by a third-party that does not have a contract with the employer, such as a pharmacy or healthcare provider, and if the vaccination program is voluntary.
Instead of mandating vaccinations in the workplace, the current trend is for employers to implement a voluntary vaccination program or policy by providing incentives to employees who choose to get vaccinated. Some examples of this include offering additional PTO or paid time off and reimbursing employees for their mileage to get a vaccine. If you decide to administer a voluntary incentive program, you must still be mindful of disparate treatment to those employees who would otherwise receive an incentive if they did not have a disability or religious belief preventing them from getting vaccinated. In those instances, you must ensure you can help your employees by either hosting a clinic or encouraging vaccination offsite in the community. Find out how in Washington State’s Vaccination Toolkit for Businesses and Employers.
Ultimately, you may decide to implement a mandatory vaccination policy because you have strong business justifications for doing so. After all, non-vaccinated employees put fellow employees, customers, and the public at risk. However, if you decide to implement a mandatory vaccination policy, you should review EEOC, CDC, and state guidelines to ensure that you are complying with applicable laws while also ensuring that you are protecting the health and safety of your employees.
The Employment Practice Group at Betts, Patterson & Mines will continue to monitor this issue and will keep you update. In the meantime, please do not hesitate to reach out to us with any questions.
