New COVID Vaccine: Top 4 Questions & Answers

With two vaccines approved and more coming, the hottest HR updates for 2021 are going to be about COVID vaccination.  Employers are wondering what to do next.  What are the best employee policies to put in place for a vaccine?  What are the best HR strategies to use when employees refuse to get vaccinated?  

MP’s HR services team answers some of your biggest questions around the COVID vaccine.  

1. Can employers require the COVID vaccine?  

In short, yes under certain circumstances and with caveats.  The Equal Employment Opportunity Commission (EEOC) has handed down guidance that some employers (these are likely to be hospitals, nursing homes, assisted living, and home health care agencies) can indeed create company policy for employees that mandates the COVID-19 vaccine among their staff.  This is because COVID-19 presents a “direct threat” to themselves or others in the workplace.  It’s also because in some cases, getting the vaccine may be job-related and consistent with business necessity.  This decision seems natural when considering that employers have already been able to mandate the flu vaccine for years in places like medical and long-term care facilities, where staff constantly work with vulnerable populations. Note that based on the above criterion, not all employees, even in healthcare settings, can be required to get the COVID vaccine.  The EEOC also suggests that some workplaces might benefit simply from strongly encouraging employees to get the vaccine (rather than mandating it).   

It’s also possible that governors of individual states will issue Executive Orders mandating vaccination.  These orders might be challenged with various lawsuits and rendered moot.  On the other hand, the Supreme Court upheld a mandatory vaccination law in 1905, so Executive Orders mandating COVID vaccination may be upheld, too. 

Employers should keep in mind that the EEOC has emphasized that workers may be excused if they have medical reasons, religious reasons, or a disability covered by the ADA.   

• Religious exception: Workers should be able to articulate how taking the COVID vaccine would violate their “sincerely held religious beliefs, practices, or observances.”  Employers need to provide a reasonable accommodation to employees who ask for it unless doing so would pose an “undue hardship” to the operation of the business.  Workers are protected under the religious accommodation provision of Title VII of the Civil Rights Act of 1964.     

• Disability: Under the ADA, workers with a disability (covered by the ADA) that prevents them from taking the vaccine could be exempt from taking it.  As above, the employer must provide a reasonable accommodation if it doesn’t cause undue hardship. 
   

2. What are the best HR strategies to use if people refuse to get vaccinated?   

Start by having a conversation with the workers who are requesting an exception.  In a calm, pleasant way, set up a private conversation with each person.  Try to get to the root of the cause for their request.  It will be important to determine if the person is asking for an exception either because they have a disability that’s covered by the ADA or if they have religious reasons.   

For employers who create a policy requiring COVID vaccination, they must be prepared for handling the interactive process in regard to religious accommodations and the ADA.  These processes will be important for the morale and safety of all staff, clients or customers, and vendors.  Choosing to mandate the COVID vaccine may be critical in creating a safe workplace.  It will be hard to enforce a COVID vaccine policy if it’s not enforced uniformly across the organization.   

If workers have a viable exception from getting vaccinated, consider how to best accommodate them.  Perhaps they can work remotely or on an off-hour shift.  They might also be moved (temporarily or permanently) to a role that doesn’t require them to interact with customers or clients in a face-to-face capacity.  Per the ADA, employers should remember that it’s confidential information if a worker gets an exception for health or religious reasons.  Do not share information about the circumstances with any other staff except those who absolutely need to know and keep documentation in a confidential file.    

3. What do employers need to do if the employee requests an accommodation under the ADA?  

An employer should be prepared to engage in the interactive process with staff members who have a valid reason for requesting one because of a disability.  Either HR or a manager should sit down with the worker to have a private conversation.  The employer and employee should discuss the reason they are asking for the exception.  If the worker is asking for an exception due to a disability, the workplace may require them to provide documentation from a doctor about their need for an accommodation.  During this process, the employer and workers should collaborate to try to find an accommodation that doesn’t create significant cost or hardship for the employer.  The accommodation must also enable the worker to complete their essential job functions, but not compromise the safety of their coworkers, managers, clients, etc.  

As mentioned above, there may be many ways to accommodate a worker who needs an exception from the vaccine.  They can work remotely or be put in a new role or physical location where they’re isolated.  They could also be given additional personal protective equipment (PPE).  Another option is for the worker to take a leave of absence until the pandemic is over or circumstances allow for them to work in an isolated setting.  Once an accommodation is reached, the employer should treat the information as confidential.  It’s imperative that employers not retaliate against the worker for requesting an accommodation.    

Note: Employers should not solicit information about any current health conditions if it’s not directly related to the request for an accommodation.  

  

4. What are the best HR strategies to use if I want to require workers to get the vaccine?  

Employers that want to mandate the COVID vaccine for their on-site workers should consider using mandatory flu vaccination policies as a model.  It will be important to keep communication open and clear between the employer and workers.  Create a written policy, including a procedure for requesting exceptions.  Keep the language focused on safety: for workers, customers and clients, vendors, etc.  Remember to keep the whole process as free of political and ideological discussion as possible.  Bringing either of these things into the conversation could create conflict or make workers feel uncomfortable.  Share the written policy with staff.  Give them as much notice as possible before implementing it.  Employers will be required to disclose information about the risks or side effects of the vaccine.  If they don’t, the third-party providing the vaccine must do so.    

If the workplace is unionized, consider getting their support in creating and implementing the policy.  If the union is backing the vaccination requirement, this might help workers to feel more comfortable with it.  If the workplace uses HR consulting like MP, this is a great time to work with them to ensure that the process is fully in compliance.  

Depending on the employer’s industry, they can either facilitate vaccination on-site or they can ask workers for proof of vaccinations that occurred off-site.  If the policy permits off-site vaccination, it may be helpful to provide a list of places where workers can go to get vaccinated.  If they need to do so during work hours, the employer is responsible for paying them for the time they took to do so.  Especially if the vaccinations are done on-site, consider having upper management get their vaccinations in a very visible, public way.  A video clip or picture of leaders at work getting their vaccination could be incredibly impactful.