As the COVID-19 vaccination ever so gradually becomes available, many employers are asking, “Can we require employees to get vaccinated?” The short answer is “yes,” with various considerations applicable to any employee policy. Whether the employer should require vaccination is a judgment call that will be different for every employer.
The following Q&A may help you think through your company’s position. As always, consult with your legal counsel about how some of these particular issues apply to you.
Q. Is there any law that says I cannot require employees to get vaccinated and require them to prove that they have?
A. No. As noted below, there are certain legal questions to consider, but currently we know of no law that simply prohibits the employer from requiring vaccinations. It is possible we will see state or local legislation that limits employers in the months ahead, but not yet.
Generally it is advisable for employers to keep proof of vaccination as basic as possible; asking a lot of questions can unnecessarily trigger requirements under various laws such as disability and genetic information discrimination laws.
Q. Does the requirement (or not) need to be the same for all employees?
A. No. In fact, as you consider some of the questions below, you may decide that it is best not to treat all employees the same – for example, having greater requirements on employees who cannot socially distance.
Q. What if we have a union?
A. If you have a union, you may very likely have an obligation to bargain over such requirements. Consult your usual labor counsel.
Q. What if my employees resist?
A. It seems clear – if you implement such a requirement, some employees will resist. Various polls show a significant percentage of Americans, even health care workers, currently do not want to take the vaccine. You should begin your deliberations knowing that, whatever decision you make, some employees will be unhappy with the decision and have a plan for dealing with that.
Q. What if an employee complains on social media?
A. Under the National Labor Relations Act, most employees have a legal right to communicate with other employees about the terms and conditions of employment. That right will protect many social media posts complaining about work, including pro- or anti-vaccination. Employers can often take action in response to posts that are threatening, harassing, or disclose confidential company information, for example, though sometimes it is hard to sort out the lawful and unlawful aspects of a single communication. But it’s generally not advisable to terminate an employee for a social media post without talking first to counsel.
Q. What if somebody has a reaction to the vaccination? Won’t we be liable?
A. Obviously this is a developing topic, but it appears that, if an employer requires vaccination and that results in illness to an employee, the employee would have a workers’ comp claim. Absent some extreme behavior by the employer, the filing of a workers’ comp claim means the employer has immunity for personal injury claims. It is possible the employer would have immunity as well under developing federal and state laws to protect businesses. In short to this question, probably not for most employers.
Q. Should we pay employees for the time spent getting vaccinated?
A. While an employer is generally entitled to impose conditions of employment, and the time taken to meet those conditions is not compensable work time, given different levels of resistance that employers will encounter, it may be prudent to pay employees for the time spent getting vaccinated to remove any obvious barriers.
Q. Should we provide other incentives?
A. It can’t hurt. One easy example would be a day off on the day the employee get vaccinated. That said, incentives are unlikely to overcome the deepest resistance. Internal “PR” highlighting employees who got vaccinated is another approach that may be productive.
Q. What if somebody says they can’t take the vaccination for health reasons?
A. Such an employee might have a disability under the disability discrimination laws and, if so, be entitled to a reasonable accommodation. A reasonable accommodation could include any number of things in lieu of the vaccination, such as a different working location (including remotely if practical to do so). Don’t panic – the right to a reasonable accommodation is not unlimited, not every employee with a health issue has a disability under the law, and employers are entitled to reasonable documentation to help them sort through their obligations. Many employers will have worked through a reasonable accommodation analysis with other employee health issues unrelated to COVID – this is the same thing! In other words, employers can handle this, and the prospect of an accommodation does not need to be a decision-maker on the broader policy for most employers.
Q. What if somebody has a faith-based objection to taking the vaccination?
A. While it does not come up as frequently, employers have an obligation to reasonably accommodate religious beliefs as well. To oversimplify two complicated topics, the extent to which an employer must go to accommodate tends to be less for religious accommodation than disability accommodation. But the employer does need to work through these situations and at least have a dialogue about the employee’s situation.
Q. Absent an accommodation requirement, can we terminate an employee who refuses to get vaccinated?
A. The Equal Employment Opportunity Commission in its guidance on vaccinations (see question K.7) is somewhat noncommittal on this. However, IF you decide to require vaccinations of some or all employees, and IF an employee is not subject to one of the accommodations discussed above, as long as there remains no prohibition on imposing a vaccination requirement, there is no legal reason you cannot do what you do when employees don’t meet your requirements. Again, employers may choose to take lesser measures for employee relations or other business reasons, but currently employers have a lot of discretion on how to approach this issue.
Q. Should we institute a requirement now?
A. Given the very limited availability of the vaccination at this point, for the great majority of employers, imposing any requirements now seems premature. As we have with all aspects of COVID-19, there are a lot of moving targets – we will continue to learn about the vaccination and any negative reactions (though initial information suggests those are not common), the vaccine presumably will become more available, some employees’ attitudes may shift, and we may see developing legal guidance. Certainly it makes sense for employers to be thinking about these issues now, but it will be prudent for many employers to wait until the vaccine is more available to impose any requirements so they can act with the most current information on all fronts when they act.
This article should not be construed as legal advice or a legal opinion on any specific facts or circumstances. The contents are intended for general informational purposes only, and you are urged to consult your own lawyer on any specific legal questions you may have concerning your situation.
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