January 14, 2021
As COVID-19 vaccines become more widely available, many employers are asking if they can require employees to get vaccinated, and what they can do if workers refuse. Please check out some of the common questions below.
CAN EMPLOYERS REQUIRE EMPLOYEES TO RECEIVE THE COVID-19 VACCINE?
In general, it is recommended for employers to offer vaccinations to employees on a voluntary basis; however, employers in most states may be able to mandate COVID-19 vaccinations as long as the employer complies with the ADA and Title VII of the Civil Rights Act.
WHAT SHOULD EMPLOYERS DO IF AN EMPLOYEE REFUSES TO COMPLY WITH OUR MANDATORY VACCINE POLICY?
While employers may be able to make vaccinations a condition of employment absent medical and religious accommodations, some employees may have general objections to receiving a COVID-19 vaccination and employers need to decide how they will proceed in these circumstances.
WILL STATE OR FEDERAL REGULATIONS REQUIRE CERTAIN WORKERS TO BE VACCINATED?
Since COVID-19 is a pandemic, it is likely that federal or state regulations will mandate vaccinations for certain personnel such as health care workers. This would be similar to current requirements for the flu vaccine. Employers in these industries should watch for and defer to regulations specific to their workplace.
DO EMPLOYERS NEED TO HAVE A POLICY IN PLACE IF THEY ARE REQUIRING OR ENCOURAGING EMPLOYEES TO RECEIVE THE COVID-19 VACCINE?
Yes, employers should develop a policy outlining any requirement or recommendation for COVID-19 vaccinations in the workplace.
CAN EMPLOYERS TERMINATE AN EMPLOYEE FOR REFUSING TO GET A COVID-19 VACCINATION?
Absent a medical or religious exemption from a mandatory requirement, an employer may be able to make a COVID-19 vaccination a condition of employment and terminate employees who do not comply. However, employers should tread carefully with this practice and consult Legal counsel prior to making termination decisions.
WHERE DO EMPLOYERS STAND ON THE VACCINE AT THIS POINT?
When we dive in deeper to the question of whether to mandate vaccinations, according to research from the Society for Human Resource Management (SHRM) more than half of organizations (55%) say they are unsure whether they will require employees to receive a COVID-19 vaccination before returning to the workplace. Four out of 10 organizations (40%) will not insist on a COVID-19 vaccination before an employee returns to the workplace.
Generally, in healthcare settings the annual flu vaccine has been required with most medical offices but even still those same employers give an option for those who would like to waive the vaccination by wearing a mask during the flu season. We suspect that most medical groups are going to take the same stance with the COVID-19 vaccination and requiring a waiver to be complete by the refusing employee.
WHAT DOES RESEARCH TELL US ABOUT WHERE EMPLOYEES STAND ON TAKING THE VACCINE?
For many organizations, COVID-19 vaccinations are a matter of dollars and sense. In SHRM’s survey of employers, two-thirds (66%) say the COVID-19 vaccination is very or somewhat necessary for business continuity. Many employers won’t need to do much arm-twisting in terms of vaccinations, though: SHRM’s research indicates nearly two-thirds (64%) of U.S. workers say they are likely to get the COVID-19 vaccination when it becomes available to them. If an employer imposes a vaccine mandate, over half (55%) of U.S. workers say they’re extremely or very likely to get the COVID-19 vaccine, according to SHRM’s research. Almost, one-fourth (24%) of workers, however, say they balk at getting the vaccine if their employer required it.
BUSINESS NECESSITY MAY VARY IN DIFFERENT INDUSTRIES
Context matters when deciding whether to mandate vaccines. “Health care, travel, retail or other businesses whose employees are at risk or who present a risk to others will have more business reasons to be “pro-vaccine” said Jon Zimring, an attorney with Greenberg Traurig in Chicago. “Office-based businesses or businesses that can rely on remote workers may find it easier to take a “personal-choice” stance”, he added.
As business owners and/or operators, staying informed and up-to-date as additional news and research becomes available will become increasingly more important as vaccines become more widely available to the general public. Your local SHRM is always a great resource for common questions and overall guidance; and consulting a Legal counsel will always be in your best interest on best practices and how to navigate your business through this next phase of the pandemic.