When the vaccine becomes available, some employers are planning to mandate inoculation of all employees from COVID-19. There is plenty of guidance and discussion on whether an employer can mandate testing, but vaccinations are a different matter.
The first step before making the decision to mandate vaccinations (after seeking legal counsel) is to determine whether the EEOC or similar state agencies have released guidance in this area. The EEOC has yet to provide specific opinion as to a hypothetical COVID-19 vaccine that has yet to be released, but they did address the matter in the H1N1, swine flu pandemic.
The current guidance hovers around the concept that mandatory vaccinations can be appropriately provided that such typical ADA and/or religious exemptions are still respected. This means that the vaccination must be job-related and consistent with business needs. Alternatively, it may be justified by a direct threat and no broader or more intrusive than necessary.
This "direct threat" standard was addressed for mandating testing as it relates to COVID-19 specifically. For similar reasons, it would not be surprising to see the EEOC and similar state agencies consider mandatory vaccinations in the same light; however, without such green light, any employer should review the current guidance before implementing a vaccine mandate that does not include the appropriate exemptions under the law.
A well-established COVID-19 vaccine mandate should hit these basic components:
- Written Policy and Procedure. Like any major policy of your workplace, you should formally write, adopt, and incorporate it into your employment manual or handbook.
- Trained and Educated Leadership. Whether you are a small business dealing with it on your own or a large company with an HR department, you must ensure that the persons implementing the vaccine program are trained in the policy and the law in order to avoid common legal pitfalls.
- Costs and Availability. Before requiring your employees to get vaccinated, consider that the vaccine may not be easily available to all at first, and like testing, employer mandates will require you to carry the costs, if any, of the vaccination itself. Though it is expected that many will be able to obtain the sought-after doses for free, testing cost-waivers under the CARES Act and government sponsored programs had similar claims but were met with issues of availability. Plainly, vaccines should be borne entirely by the employer to avoid financial barriers to employment.
- Opt-Out and Exceptions. A properly implemented vaccination requirement should not be strictly applied to all employees. You should allow employees to opt-out entirely if they have medical or religious objections. Such objections should follow the interactive process as you would any other religious or disability accommodation request.
- Record Keeping. Records that verify and log vaccinations of your employees would be considered medical records that would be required to be kept separate from personnel files with limited access in accordance with the ADA.
- Maintain and Follow Regulatory Guidelines. As the vaccine becomes more widely available, more guidance will be released by various agencies, including updated safety guidelines related to COVID-19. Keeping your policy up-to-date will continue to be important throughout 2021.