COVID Vaccine Mandates: 6 Considerations When Employees Can’t or Won’t Get Vaccinated

In the latest HR updates, many employers are likely to be impacted by President Biden’s COVID vaccination mandates. Even if employers aren’t required to create temporary COVID vaccination employee policies, they may still be trying to encourage their workers to get vaccinated or even incentivizing it. Some employers will encounter staff that either have a medical reason they can’t be vaccinated or a legitimate religious objection to vaccination. In these cases, to maintain HR compliance, employers should conduct an interactive process with employees. These are six alternative strategies employers could consider when employees request an exception from vaccination.

6 Considerations When Employees Refuse Vaccination:

1. Reassign the employee to a new job:

Reassigning an employee who can’t or won’t get vaccinated to a new role may work in a temporary or long-term capacity. If an employee has the relevant foundation of skills and experience, employers might consider reassigning the employee to a role requiring less interaction with coworkers, clients, customers, etc. When the pandemic is over (or the conditions have improved), the employer and employee could reconsider the assignment, either reversing it to the original, pre-pandemic role or choosing to continue the job reassignment if it is a good fit for all parties.

2. Allow remote work options:

Employers may want to consider allowing employees who can’t or won’t get vaccinated to work remotely on a partial or complete basis.

3. Require new or enhanced Personal Protective Equipment (PPE) and safety practices:

If employers are unable to put an employee in an isolated workspace, they can require intensified safety practices. Employees may be required to wear a mask (or double mask), wear protective gloves, or take their breaks on a separate schedule from vaccinated workers.

4. Implement weekly COVID testing:

This option may be costly and labor-intensive for employers. Employers would need to create a system of tracking testing results. This system must remain confidential, as it concerns private medical information. Depending on the state laws and the rules for the mandate as they are written, employers may be required to pay for the testing if the employee(s)’ insurance doesn’t cover the cost. Employers should consult with a labor law attorney with knowledge of the state laws applicable to the employee(s) in question. Though there isn’t clarity yet from the Occupational Health and Safety Administration (OSHA), employers may be able to use home testing options for weekly COVID tests. In his announcement, President Biden mentioned these would be sold at a lower price to reduce the cost of weekly testing.

5. Furlough or grant temporary leave:

Putting an employee on a furlough or extended leave should be one of an employer’s last resorts. Before choosing this option, employers should consult with HR compliance services experts, like MP, or a labor law attorney. These professionals will assist an employer in reducing risk and maintaining compliance if they must place employees on either furlough or a temporary leave.

6. Termination:

Terminating an employee who cannot or won’t get vaccinated should be the last resort for an employer. Consulting with a labor lawyer before considering this action will be crucial to reducing legal risk. Employers can only choose this option if they can prove that an unvaccinated employee is a “direct threat” to others in the workplace and no other reasonable accommodations to implement. Establishing a “direct threat” will require a 4-pronged evaluation:

• The duration of the risk: how long will the unvaccinated employee be a threat to the safety of others in the workplace? Months? Longer?
• The nature and severity of the potential harm: What will be the consequences of the employee potentially exposing coworkers and customers to COVID? Are many of the other coworkers, managers, clients, etc., vaccinated and thus more protected?
• The likelihood potential harm will occur: How high are COVID rates in the location of the workplace? How high are vaccination rates? This likelihood will vary significantly across the US.
• The imminence of the potential harm: How quickly will this harm occur? If rates of COVID are skyrocketing in the workplace location, the imminence will be higher, too.