By: J. Scott Hudson, Esq. and Rebecca Schulte

With two COVID-19 vaccines currently approved for emergency use, and more on the way, employers are looking forward bringing more employees back into company offices and facilities. In order to bring employees back into the workplace safely, many businesses are considering implementing mandatory vaccination policies.  However, a recent study by the PEW Research Center shows that over 20% of Americans are opposed to getting the vaccine. Medical experts can only guess what percentage of a population must be immunized before herd immunity can be reached, but this large group of the working population that is unwilling to receive a COVID-19 vaccine threatens employers’ ability to both create a safe work environment and remain compliant with anti-discrimination laws.

According to EEOC guidance on pandemic preparedness in the workplace, the possibility of contracting COVID-19 in the workplace constitutes a “direct threat” to employees, which allows employers to take precautions that would normally not be permitted under ADA, such as taking temperatures. Additionally, OSHA’s “general duties” clause requires employers to provide “safe and healthy working conditions” and a mandatory vaccination policy may provide a measure of protection against OSHA violation claims. 

Even though COVID-19 meets the requirements for a direct threat, EEOC guidance states that covered employers are required to consider accommodations for: (1) individuals with disabilities, or (2) for those with a sincerely held religious belief. This accommodation process usually includes an individualized assessment, review of possible accommodations, and whether such accommodations would pose an undue hardship. Employers should evaluate what accommodations can be made in order to minimize the risk of transmitting COVID-19 to other employees or customers, such as work from home arrangements or increased PPE use.  It is worthwhile to note that employees with secular or medical beliefs against vaccination do not qualify for an exemption.

In the face of these competing interests, employers should consider implementing voluntary vaccine policies that focus on educating and incentivizing employees to be vaccinated. Employers should always review state law to identify any statutes that may supersede federal laws regarding mandatory vaccinations in the workplace. Reach out to your employment and labor law attorney for guidance.

Implementing a Vaccination Program:

• Develop and communicate a written vaccination policy.  Work with your attorney to ensure policies are job-related and constitute a business necessity.

• Train human resources professionals to directly oversee vaccinations programs in order to ensure compliance.

• Cover employee costs related to vaccination if not already covered by health insurance. Consider providing paid time off for employees to get the vaccine.

• Identify employees with medical conditions or religious objections to vaccinations and begin an interactive dialogue with employees who qualify to determine whether reasonable accommodations can be made.

• Update future job descriptions to specify essential functions that might require mandatory vaccination.