Should Your Organization Create a Mandatory COVID Vaccination Policy?

A COVID vaccination policy won’t be the right choice for every employer.  MP’s HR services team shares three options that your team has and the best HR strategies to implement them.   

Three COVID Vaccination Policy Options: 

1. No Mandatory COVID Vaccination Policy: Employers that aren’t in the medical field or a managed care facility probably will need to take this option.  A good rule of thumb is, if an employer could mandate that their employees get the flu vaccination, they can probably mandate COVID vaccination.  If your organization can’t create a mandatory COVID vaccination policy, there are some benefits.  Not mandating the vaccine is the least risky choice as an employer.  You’ll be lowering the chances of running afoul of state regulations, you’ll be more likely to be ADA compliant, and you’ll avoid potentially inspiring unionization (if you don’t already have it) or lawsuits.   

2. Create a Mandatory COVID Vaccination Policy: Employers that can make a case for requiring employees to get the vaccine can go this route.  Generally, these will be medical and long-term care facilities, where staff are constantly working with vulnerable populations.  (Even in these organizations, though, it’s important to note that not every employee’s job will make vaccination a necessity.)  They must be able to prove that an unvaccinated employee poses a threat to the business, clients, patients, etc.   
   
   The best practice for creating a mandatory COVID vaccination policy is to build it based on mandatory flu vaccination policies.  (MP’s HR consulting  team can advise workplaces as they create these employee policies.)  The policy should begin by articulating the business necessity for workers’ vaccinations.  It should allow workers to request exemptions or accommodations based on medical reasons or religious reasons.  Employers will need to detail out who will handle exemption and accommodation requests, as well as what the process will be.  Employers are required to disclose information about the risks or side effects of the vaccine.  If they don’t, the third-party providing the vaccine to workers must do so.     
   
   If employers do create a mandatory vaccination policy, they should share the policy with all workers as soon as possible to give them notice before it’s implemented.  The whole process should be 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.
   
   Employers should also train managers and prepare for the interactive process (to maintain ADA compliance) if workers do request exemptions.
   
   Employers may want to think ahead of time about how they can accommodate workers who cannot (or will not be getting) vaccinated.  These solutions can include letting an employee work remotely or in an isolated location, letting them work off-hours, or giving them extra PPE (Personal Protective Equipment).  If accommodations can’t be made right now, employers could consider options for a leave of absence for the employee.  FMLA won’t be an option, nor will FFCRA leave.  Sick time, vacation time, personal time, or an unpaid leave of absence might be a good fit.
   
   Employers should also take job applicants into account when they create a mandatory vaccination policy.  Because job applicants are covered under the ADA, employers should ensure that they do not discriminate against applicants with a disability that prevents them from getting vaccinated.  Employers should also not hold off on hiring an employee because they have a medical or religious reason for not getting vaccinated.  This could lead to a discrimination lawsuit.  
   
   If the workplace is unionized, consider getting the union’s 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.
   
   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 will permit off-site vaccination, it may be helpful for the employer to provide a list of places where workers can go to get vaccinated.  If they need to do so during work hours, the employer will be responsible for paying them for the time they took to do so.  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.

3. Encouraging vaccination, then later mandating it if necessary: This is an ideal way to approach the process.  It could be much smoother and less complicated. Employers may find that all their workers already planned to get vaccinated (except those that have legitimate reasons not to, like allergies).  They might also find that if they set up a vaccination clinic onsite, employees will jump at a convenient option to do something they were already considering.  Providing incentives to workers for getting vaccinated is risk, as it could lead to accusations of discrimination or even potential lawsuits. 
   
   Employers may also want to wait to mandate COVID vaccination because it’s possible that governors of individual states will issue Executive Orders mandating vaccination.  These orders could 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.