Can you? Should you?
Updated Guidance on COVID Vaccination in the Workplace
As the country enters a new wave of COVID-19 with the more contagious and deadlier Delta variant, you may be trying to determine what this means for your workplace. As employees return to the workplace, many employers and employees are concerned about exposure to others who are not vaccinated. Can you require employees to get the COVID-19 vaccine? Should you?
As a reminder in California, Cal/OSHA requires employers to document the vaccination status of its employees who have contact with other employees or with customers/clients. All unvaccinated employees are required to wear a mask when working indoors. An employer may decide not to document the vaccination status of their employees and instead opt to require all employees to wear masks at work (Please note mask mandates are changing in several counties and cities as this blog is being published). The updated FAQs provide more detail on this requirement.
On May 28th, 2021, the Equal Employment Opportunity Commission (EEOC) updated its Pandemic Preparedness in the Workplace Guidance to again reinforce that employers may require employees to get vaccinated as an employer is allowed to have a workplace policy that includes a “requirement that an individual shall not pose a direct threat to the health or safety of individuals in a workplace.” Additionally, the EEOC stated that a vaccination is not considered a ‘medical examination’ under the American with Disability Act (ADA). California has taken the same stance on this issue.
Requiring Vaccines Among Employees
If an employer requires the vaccination, there must be a clear procedure for employees to request an exemption that could be considered a reasonable accommodation on the basis of several factors. These exemptions include a disability under the ADA, a sincerely held religious belief or a medical condition that would prevent the employee from being safely vaccinated. Each request will need to be evaluated on a case-by-by case basis since there are many different circumstances to be considered. If the employer receives such a request, they must engage in a thorough interactive process with the employee. This process should be documented to include all conversations and steps taken. The employer will need to determine what they will do next if the employee follows through with not getting the vaccination or if a reasonable accommodation can not be made.
Some things to consider if you will be requiring the COVID-19 vaccination in your workplace. At SDHRC, we can help you draft a mandatory vaccination policy that checks all the boxes below:
- Policy. Ensure you have a strong written Vaccination Policy to include who is covered by the policy. The policy should also state the employer will not tolerate discrimination or harassment based on an employee’s vaccination status or their decision to wear or not wear a mask as long as the employee is following the proper requirements based on their vaccination status or the company policy.
- Statement. Include a thorough statement about why you are mandating the vaccination for your workplace. Is it to protect other employees? To protect clients? To comply with public health guidance? If you are in healthcare, childcare, etc. you can also include the need to protect patients or children.
- Procedure. What process will the company follow to implement the policy? Will they provide vaccinations on site or a list of community resources to employees? How long do employees have to comply with the policy? How do employees request reasonable accommodation due to a medical reason or a sincerely held religious belief?
- Remote. Do you have employees working remotely with no contact with anyone else? If so, your policy will probably not make sense for those employees.
- Proof. What do employees need to submit to show proof of vaccination? They should not be required to submit medical or genetic information. How will this information be protected to ensure employees’ privacy rights?
- Refusal. What will you do if an employee does not have a valid exemption but will not get vaccinated? Will you exclude them from the workplace? Require them to work from home or go on a leave of absence? Discipline or terminate them? How will you ensure you handle this process, consistently and fairly? What if several employees refuse to get vaccinated? This should be considered carefully since mass terminations may not be practical or legally advisable.
Encouraging Vaccines Among Employees
The EEOC recommends employers consider simply encouraging employees to get the COVID-19 vaccine unless there is a strong business reason for requiring it. Due to the various pitfalls, many employers have decided to take the approach recommended by the EEOC and highly encourage employees to get vaccinated.
To make it easier for employees to comply when it is not mandated, employers can implement the following:
- Offer free vaccinations at their workplaces. Contact your local health department for guidance. Additional considerations for hosting a vaccination clinic can be found on the CDC’s Resources for Hosting a Vaccination Clinic website.
- Adequately communicate the vaccinations to employees so they are aware when the clinic is occurring and the importance of getting one.
- It would be helpful to educate employees on the steps taken to ensure the safety of COVID-19 vaccines. More information can be found here.
- Ensure employees are educated on the possible side effects of vaccination and what they should do if they have side effects.
- If you will not have an onsite clinic, provide employees with information on locations offering COVID-19 vaccinations in the community.
- Do you want to offer an incentive such as a small gift card or another reward? How will you reward employees who are exempt from getting the vaccine? Remember any incentives must meet both HIPAA and IRS requirements for compliant wellness programs.
Allergic Reaction Complications
A common question arises of employer liability if the employee has an adverse reaction to the vaccine whether they receive it at the workplace or in the community. Severe reactions are possible but are very rare. For an onsite clinic, employers should be working with a reputable healthcare provider to administer the vaccination and they will be able to assist with any issues.
If the vaccine is mandated, any severe reactions may be covered by the workers compensation policy and the company should check with their carrier. If the vaccination was not mandated but merely encouraged, severe reactions will probably not be covered by workers compensation. To have a legal claim, the employee would need to show negligence on the part of the employer. If the employer is using a reputable third-party provider and the vaccine is FDA-approved, a claim of negligence will be hard to prove.
How SDHRC Can Help
This issue is very complex and it is important to handle all vaccination requirements in the workplace with a well-educated perspective on the topic! Whether or not you require the COVID vaccine among employees is a situation unique to your specific workplace. SDHR Consulting can help you navigate through the pitfalls to ensure a successful vaccination program for your company that includes not only the COVID vaccine but other vaccines as well. Our HR experts take the stress off of your shoulders as we provide professional insight and guidance when it comes to the COVID vaccine in the workplace.
About the Author
Traci Hagan, “Treasure Trove”
Traci is an HR Consultant who has been with SDHRC for over 2 years but has over 32 years of experience in employee relations, conflict resolution benefits administration, training and development, workers’ comp and staffing! Traci is also a Professor who enjoys traveling and spending time with her 16-year-old “puppy”.