Vaccines are here, what employers need to know.
As the global community rejoices at the arrival of a COVID-19 vaccine, employers are once again struggling to understand how this new development impacts their workforce. One question I’m hearing a lot is, “Can an employer require employees to get vaccinated before returning to work?” While the available guidance supports a mandatory vaccine policy, there are some very important considerations to be made when enforcing this kind of policy. Let us look at what those considerations are and how the vaccine will impact your business.
First things first, you need to develop a plan. We know there are a limited number of vaccines and that they will be distributed in batches. It is unlikely that your entire staff will be vaccinated at the same time. How you approach easing current workplace restrictions will depend on your industry, the type of work you do and how you’ve been operating up to this point. An accounting firm with remote workers may be able to offer more flexibility to employees working from home where a manufacturing facility may be more stringent with their mandates, knowing employees must be onsite to perform their jobs. Take the time to consider what approach will afford your organization the ability to continue operations while keeping your employees, customers and the public safe, something OSHA law requires of all employers.
If you decide a mandatory vaccination policy is right for your organization, here are the most common considerations you will need to make as you roll out your plan.
- Is your organization subject to a collective bargaining agreement under the National Labor Relations Act? If so, you will need to reach out to the union and work with them to develop and implement this policy for those employees in the union.
- When it comes to Title VII of the Civil Rights Act of 1964 (Title VII), the Equal Employment Opportunity Commission (EEOC) will be concerned if your organization does consider employees with opposition to the vaccine due to sincerely held religious beliefs. Failing to provide accommodation for such a request could leave you with an EEOC charge of discrimination. Employers must provide reasonable accommodation under Title VII unless doing so would result in an undue hardship to the organization.
- While the Americans with Disabilities Act (ADA) allows an employer to require that “an individual shall not pose a direct threat to the health or safety of individuals in the workplace” (like what may happen if you have an unvaccinated employee in the workplace), doing so cannot disproportionately impact those with disabilities. Employers will have to perform specific assessments to determine risk levels and provide proper accommodation.
- Continue to monitor developing employment laws. The ever-changing pandemic landscape will no doubt continue to churn out legislation and guidance – stay tuned!
This general overview will help you anticipate and navigate common issues that will arise from vaccine distribution. It will be important to consider and analyze each concern to determine the best course of action under the law. I know there is a lot to think through and digest. If you would like to take a deeper dive into what would work best for your business, reach out. Moving forward into the next phase of this pandemic can be overwhelming and our team is here and ready to help you through it, you are not alone.
