Considering a Mandatory COVID-19 Vaccination Policy?

Vaccinations are making their way around the country, providing light at the end of the COVID-19 pandemic tunnel. This may prompt a new policy that you may not have considered including in your handbook until recently: a vaccination policy.

Before automatically discounting or implementing a vaccination policy, here are some things to consider.

Can our vaccination policy require employees to get the COVID-19 vaccine?

While state and local laws may differ, the short answer is yes. But while many companies and government agencies may concede that helping to end a pandemic warrants a mandatory vaccination policy, you may have backlash from employees if the risk of transmission at work is low.

Here are questions to ask before implementing a mandatory “you must get vaccinated to work here” policy or completely dismissing the idea altogether:

• Do your employees constitute a direct threat to coworkers, customers, vendors, or the general public by not being vaccinated?
• Could the virus be easily transmitted at your workplace?
• Is it possible your employees may take a stance that you have failed to provide a safe and healthy work environment by not mandating all employees be vaccinated?

Any “yes” answers to the above questions may merit a mandatory policy that requires employees be vaccinated, although you’ll need to include exceptions to your policy (see below). Also, if your organization has any union employees, you’ll need to undergo collective bargaining agreements before determining whether your policy is voluntary or mandatory.

Which industries are likely to enforce a mandatory vs. voluntary vaccination policy?

Industries that will likely implement a mandatory vaccination policy may include restaurants, healthcare, travel, retail, childcare, elderly care, and any others that interact regularly with the public or with high-risk individuals.

Businesses that will likely implement a voluntary vaccination policy may include office environments where employees are separated from each other and/or companies that allow employees to work remotely.

What type of exceptions should be included in a vaccination policy?

Not everyone will be anxious to be inoculated, but there may only be a few legitimate exceptions to your company’s mandatory (if deemed necessary) vaccination policy: those with a medical condition, disability, or sincerely held religious belief. Per the Americans with Disabilities Act (ADA) and Title VII of the Civil Rights Act of 1964, employers must accommodate such employees by exempting them from the vaccination requirement.

Can we mandate only certain departments within our company to be vaccinated?

Yes, it’s possible that some departments within your organization are considered more of a direct threat than others based on job duties, level of interaction with the public, workspace, and more. Therefore, you may require different positions to be vaccinated without mandating the entire organization to do the same. Be sure to document this in your policy.

What if we get pushback from employees who see a mandatory vaccination policy as an infringement on their rights?

Per the EEOC guidance issued on December 16, 2020, employers can require workers to get the COVID-19 vaccine if deemed necessary to protect their employees and/or customers (see OSHA’s General Duty clause). If an employer makes the vaccination a requirement, employees do not have to be forced to take it but may be asked to pursue employment elsewhere.

Note: employers who require vaccinations and have implemented no other safety measures during the pandemic (such as requiring face masks, physical distancing, or implementing any other safety measures) may get more backlash and filed complaints than employers who have already established safe policies and practices.

What are best practices for employers trying to determine if they should make vaccinations mandatory?

• Talk with staff to explain your employer stance of needing to protect the workplace, customers, society, and the nation’s healthcare system.
• Anticipate issues, questions and pushback. Ask for employees’ input.
• Decide if you’re truly willing to discipline everyone who violates your policy.
• Determine your position and develop your policy (see below).
  • Employees may be more willing to get vaccinated if your policy is “strongly encouraged” rather than required.
• If you take a mandatory stance, only ask for proof of vaccination; no other genetic or disability information should be disclosed.

If we implement a mandatory vaccination stance, do we (the employer) have to pay?

Yes, if getting vaccinated is mandatory to continue working for your company, the employer must pay for it. This includes time spent going to get the vaccination, on- or offsite.

Can we provide incentives for employees who get vaccinated?

Yes, incentives for being vaccinated would fall under the parameters of a wellness program. However, you may need to provide an alternative solution for those who are unable to be vaccinated (due to a medical condition, disability or sincerely held religious belief) to receive a comparable incentive.

What verbiage should we include in our vaccination policy?

Your vaccination policy should cover the following areas:

• Purpose: The reason behind having your policy.
• Scope: Who is impacted and any corrective action for those who defy the policy.
• Procedures: How impacted employees will be notified, where immunizations are expected to take place, who will pay, whether time spent being immunized will be compensated, deadlines to comply, and how to demonstrate proof of vaccination.
• Reasonable Accommodations: The method for employees to obtain an exemption, should they meet any of the outlined criteria.

For questions or help with drafting your company’s vaccination policy, please contact your certified HR expert. 

• EEOC
• NAPEO
• SHRM