Covid Vaccines and the Workplace
I’ve had quite a few calls from clients asking whether they can require employees to take the COVID-19 vaccine, and I’ve drafted a handful of vaccination policies for those employers who have decided to require it. But there are many things to things to think about before going down that path.
First, why would an employer want to require the COVID-19 vaccine? The primary reason is that the Occupational Safety and Health Act requires employers to provide employees with a safe work environment. In fact, it’s for this reason that OSHA has long taken the position that employers can require flu shots and other vaccines.
Second, savvy business owners with some HR background may recall that the American’s With Disabilities Act (“ADA”) generally prohibits an employer from requiring medical exams, or from certain medical inquiries, of its employees. Last December, however, the EEOC came out with guidance that requesting proof of a COVID-19 vaccination is not likely to elicit information about a disability and is, therefore, allowed. This guidance cleared the path for many employers to require vaccinations.
Third, it’s not quite as simple as getting the go-ahead from the EEOC. There are other laws that an employer has to consider. The ADA requires medical treatments to be job-related and consistent with workplace necessity. Just like most states have implemented a vaccine distribution process that prioritized certain groups, an employer should first ask whether any mandatory vaccine policy is narrowly tailored to address the risks of COVID-19 in the workplace. It likely makes no sense to require vaccination of those who work remotely and are not customer facing. On the other hand, employees who work in close proximity to each other, or regularly encounter the public, are more logical candidates for mandatory treatment. The bottom line is that irrational fear of COVID-19 is not enough. There has to be a specific and reasonable basis to believe that requiring the vaccine is necessary to keep the workplace safe and to allow employees to perform their job duties.
Assume an employer can meet that test – it must next turn to the issue of accommodations. The first concern relates to those who have a “sincerely held religious belief” that prohibits them from taking the vaccine. That belief doesn’t have to be common – just sincere and not held only to avoid being vaccinated.
The second concern relates to those with a personal health or other medical reason for not getting the shot. Under the ADA, those employees are entitled to reasonable accommodations.
For medical exemptions, the policies I’ve written require a licensed medical provider to certify the reason for the requested exemption/accommodation. Regarding the religious belief exemption, my policy generally asks the employee to detail his/her sincerely held religious belief(s) and to provide documentation for it (if available.) The goal, as described in my generic policy, is stated as follows:
To assist any employee who is disabled, pregnant, who is a nursing mother, who has a qualifying medical condition that is a contraindication to the vaccination, or who objects to being vaccinated on the basis of sincerely held religious beliefs and practices, the Company will engage in an interactive process to determine whether it can provide a reasonable accommodation provided it does not create an undue hardship for the Company and/or does not pose a direct threat to the health or safety of others in the workplace and/or to the employee. If you believe that you require such an accommodation, please notify the Human Resources Director in writing. Once the Company is aware of the need for an accommodation, the Company will engage in an interactive process to identify possible accommodations. If you believe that you have been treated in a manner not in accordance with these policies, please notify the Company immediately by speaking to the Human Resources Director. You may utilize this procedure without fear of retaliation.
Employers also have to consider issues of pay. Since the vaccine is required, I think it prudent for an employer to pay the employees’ usual rates for the time period spent obtaining the vaccine. By extension, I think it wise for an employer to also not dock an employee for sick time for those who have a bad reaction to the shot.
Most of what I’ve written doesn’t apply to employees who are members of a bargaining unit. Their collective bargaining agreements will dictate what the employer can, and can’t do, in this regard.
Finally, because the COVID-19 vaccine can be a touchy topic to some, I am aware of some employers paying financial incentives to employees who get the shot. While beyond the scope of this article, consideration needs to be given to the tax implications of such payments.
I’ve painted this topic with the broadest of brushes. If you have specific questions, whether as an employer or employee, you are best served by consulting your own legal counsel to discuss the specifics of your situation.