COVID-19 Vaccinations and Your Employees: What Employers Need to Know
March 5, 2021
As we have written previously, employers can require employees to be vaccinated for COVID-19 or face discharge. The question we now look to answer is, should they? With more working age Americans becoming eligible for the COVID-19 vaccine, employers need to ask themselves how best to deal with fellow employees’ concerns that other workers (and visitors) are not vaccinated. The CDC has provided guidance that defines COVID-19 as a direct health risk to workers. The EEOC has the same standard when deciding if mandating vaccines violates the American with Disabilities Act. As a result of this decision, employers can require employees to be vaccinated to protect fellow workers. The two exceptions to this general rule are for employees who have genuine religious beliefs against vaccination and workers who need an accommodation for health reasons. Measure that against a February 2021 national survey which showed 31% of Americans planned to wait and see how the vaccine was working before getting vaccinated, with another 20% saying they would not take the vaccine at all or would only take it if it was required. Based on all this, one thing becomes clear; employers need to be prepared to address mandating vaccinations in their workplace.
While the CDC and EEOC’s positions allow employers to generally mandate vaccinations, the challenge is how to address the vaccination issue without being dictatorial when mandating the vaccine or concerning when not doing so? First, we recommend all employers take some time to educate employees on the vaccines and the virus. The CDC has available a wide array of printouts that employers can use in this regard (click here to be taken to the CDC’s online resource page).
Next, employers may wish to consider what type of business they operate before issuing a draconian vaccination policy. For instance, a company that provides remote consulting services to international clients can hardly justify implementing a mandatory vaccination policy for its stay-at-home consultants. Quite a different analysis could and should be done for a company that has a high concentration of employees who have direct, close and prolonged contact with each other and possibly their client base. These two examples are extremes. Employers should do their own analysis and evaluate their unique situation to determine what type of vaccination policy best applies.
There is light at the end of the COVID-19 tunnel, but it is still far away and employers must stay vigilant. Many of you have done an amazing job navigating the pandemic and leading your organizations through the most challenging economic and public safety environment in generations. You should be commended for your efforts. This is one more challenge that must be met to protect your employee and client relations.
The subject matter of COVID-19 related posts is often very technical. It is also an evolving area of law and very fact specific. Our goal here is to simply alert you to some of the key issues involved. We urge you to seek competent legal counsel before applying these ideas to your specific situation. Since March 2020, we have had a team of attorneys focusing on COVID-19 related developments and they continue to stand ready to help you with any issues involving the pandemic.