After more than a year of living with the COVID-19 pandemic, we are finally seeing light as the end of the tunnel approaches. COVID-19 vaccines are rolling out. By almost all accounts, the vaccines are safe and very effective at preventing those who are vaccinated from being infected with COVID-19. Early studies are showing they also prevent the spread of the virus.
While distribution has been slower than most hoped, availability should improve, and the general population will gain greater access to vaccination appointments. Employers need to decide: Will you implement COVID vaccination-related guidelines for your personnel and workplace? If so, will they involve requirements or recommendations? What will those guidelines look like? And then a major functional question: How will you pull it all off?
Requirement or Encouragement?
The decision to require or, instead, to encourage employee compliance will affect the content of your guidelines, so employers should consider that issue first. Factors to consider in deciding to make vaccination mandatory or voluntary include: How necessary it is for employees to work with each other, or with customers or clients, in situations where the virus is easily transmitted and it is difficult to mitigate the risk? How about in situations where there is frequent contact with people at a high risk?
For example, those working with patients in a dentist’s office must work closely with unmasked patients holding their mouths open for extended periods. Another example may be employees who work in nursing homes. An employer should consider whether it can conduct its business in a manner that is safe for employees and the customers, clients, or patients the employees come in contact with.
Many businesses have figured out how to conduct their businesses in a safer manner, but are those changes things that can be maintained? Would having all employees vaccinated help get the business going more productively? Or have changes such as the installation of transparent barriers allowed your business to continue working as usual and sufficiently mitigated risk?
You likely have heard about instances of employee exposure in shared workspaces where distancing recommendations cannot be implemented or are difficult to implement. Do your employees work together in large open spaces with few if any barriers? Meat processing plants, call centers, cubical farms, and warehouses are a few examples of the types of work environments in which physical safety protocols might be difficult, or impossible, to implement.
To address these issues with these shared workspaces, many employers have implemented work-from-home practices. For some companies, employee productivity and the customer experience have not been adversely affected, so that option might be open to employees long-term. Other companies are anticipating bringing their employees back in-house, either to improve outcomes or simply because office culture is integral to their businesses. If the work-from-home option is available to non-vaccinated employees, there may be little reason to require vaccination. The need for employees to travel using public transportation may also be a factor for an employer to consider.
Another issue to consider: Requiring employees to be vaccinated could increase risk of exposure to liability. If you require vaccinations, you will need to carefully evaluate requests for disability exceptions or accommodations to avoid potential issues with the Americans with Disabilities Act (ADA). Employees with religious objections to the vaccine also are entitled to reasonable accommodations under Title VII.
Yet another factor is how to address employee noncompliance if vaccination is required. How will you handle a situation in which employees refuse vaccination for non-disability or non-religious reasons? Termination is an option. But how will you handle a situation in which you feel the need to make an exception for one employee? Treating employees differently could subject you to discrimination claims.
There are also financial considerations. How might the loss of an employee or multiple employees affect your business? Are you willing to lose a good employee who has concerns about the vaccine and refuses to be vaccinated? What will be the cost of hiring and training someone new for that role? Are you willing to jeopardize the business in this way?
Finally, do you accurately grasp how employees will feel about mandating vaccinations or how they will react? Are you willing to be considered the bad guy? How will it affect the culture of your company or the morale of your employees?
We think most employers are likely to determine that the drawbacks of a mandate outweigh the benefits and will instead encourage employees to be vaccinated or provide some incentive for them to be vaccinated.
Incentives can take several forms. Because some employees may not want to lose wages or use their paid time off for leaving work to get vaccinated, participation is likely to be higher if the employer pays employees for the time taken to get the vaccine (as some large retail companies like Dollar General and Target are doing). According to this IRS notice, employers are entitled to tax credits for providing paid leave to employees who take time off related to COVID-19 vaccinations. Companies could also offer additional paid sick time or other paid time off. Some employers are offering or considering offering gift cards or a payment of a set amount to each employee who gets vaccinated (for example, Petco is paying $75 and Kroger is paying $100 to each vaccinated employee).
There is a slight risk of legal issues for offering more than small financial payments or gift cards, because the EEOC has not provided clear guidance on what incentives are allowed without violating the ADA or other laws, but many employers are concluding the benefit of incentivizing employees outweighs that risk. Also, while at this time having an on-site vaccination clinic at your workplace is probably not possible or feasible, that could become an option at some point for some employers.
Any vaccination-incentive program must also include maintaining mandated safety measures in the workplace. With a partially vaccinated workforce, continuing to practice social distancing, wearing masks, adhering to hygiene protocols, and staying home if sick or quarantining if exposed will be imperative. Employers will still be subject to any state and local health mandates.
Developing a COVID-19 Vaccination Policy
Once you decide to either require or encourage vaccination, you should prepare a written policy. The CDC provides some tools for employers in fashioning and implementing a vaccination policy.
Implementation timing should take into consideration state and local rollout schedules and the various CDC- and state-defined priority tiers. You will also need to take into account the types of vaccines available. The first two approved for distribution (Moderna and Pfizer) require two shots spaced apart by several weeks, but other vaccines expected to be approved may only require a single shot (for example, Johnson & Johnson). These issues will need to be considered if allowing for time off or, if requiring vaccination, setting deadlines.
As your company develops your policy, consider the impact on your organization. Do you have the staffing required for oversight including records-gathering, recordkeeping, and compliance verification? Is your human resources department equipped to securely store medical records that must be kept confidential? If you outsource HR functions, consult with your HR services provider in developing your policy.
It is currently unclear for how long the vaccination will be effective, so consider when developing a policy that booster shots may be necessary in the future. Build in flexibility for changing circumstances and guidance from public health officials.
For a final thought, some employers are considering designing a policy that is broader to cover other vaccinations (for example, seasonal flu vaccinations) or future outbreaks and pandemics. Your policy can always be amended, though, so the better approach may be to focus on the immediate issue of the COVID-19 vaccine but with a plan to revisit it and consider expansion later.
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