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Daily DigestFebruary 11, 2021by Stanton LawCOVID-19 Vaccines—To Mandate or Not?

Workplace Vaccine Mandates

Although the Equal Employment Opportunity Commission (EEOC) has determined that employers can mandate COVID-19 vaccination, the real question is whether employers should impose a companywide vaccine mandate. There are many factors to consider when deciding whether, and how, to address the COVID-19 vaccine with employees, wrote Josh Joel of Stanton Law and Amanda Farahany of Barrett & Farahany in a February 9, 2021, Fulton County Daily Report article.

Social Responsibility 

Undoubtedly, the decision to mandate employee vaccination will vary based on the type of business. Employees’ proximity to one another and ability to maintain a social distance are definitely factors to consider, the co-authors note. Healthcare operations, elder care facilities, and schools, where individuals are in close quarters and infections spread easily, might seem natural environments for a mandate. By contrast, businesses that operate in an office environment, where everyone has a separate office or cubicle surrounded by barriers, may feel less pressure to require vaccines. 

Mind the Gap

As with all other vaccine policies, a COVID-19 vaccine mandate must permit exceptions for religious or disability accommodation, advise Joel and Farahany. For religious objections, employers must make an accommodation if doing so would amount to no more than a small burden to the business. As the co-authors point out, a religion does not have to be mainstream, but the employee’s belief in it must be sincerely held. In a disability situation, employers should engage with the worker to come up with an accommodation that does not pose a direct threat to the workplace or an undue hardship on the business. Employers should be careful about pushing an employee too hard to give a reason for not taking the vaccine. Farahany and Joel note that employers do not want to be seen as trying to elicit information about an undisclosed disability, which is against regulations established by the EEOC and the Americans with Disabilities Act.

The Devil’s in the Details 

Beyond the accommodation issues, employers will have to decide what the consequences will be for employees who neither follow the policy nor ask for religious or disability accommodation. For example, instead of terminations, consider furloughs, which allow workers to potentially qualify for unemployment benefits, the co-authors wrote. Prior to any enforcement action, employers are advised to consider whether a group of dissenting employees are all one race or nationality, noting that such circumstances require additional analysis with respect to potential claims of discrimination. The attorneys agree that a mandate may include ad hoc exceptions, so long as the exemptions are given without discriminating against a protected class. 

Getting to Yes 

Employers can strongly encourage workers to comply with the vaccination policy by paying them to get the shot or administering the vaccination onsite. If they mandate vaccines, employers can legally ask for proof of vaccination given by an independent provider, note the co-authors.

Alternatively, employers can skip a policy altogether and instead strongly encourage vaccination. Encouragement could be given as a combination of incentives (such as a small bonus or a paid day off to get the vaccine), consistent messaging (perhaps sharing your own plans to get the vaccine), and education (on the efficacy of the shot along with suggestions of where an employee may find reliable information on the vaccine’s safety). 

None of the Above 

Joel and Farahany note that a third option would be to neither mandate nor strongly encourage vaccination but instead reiterate current safety protocols and continue following CDC guidelines, including mask wearing, social distancing, and safety procedures for exposed or confirmed positive employees.

You can read the entire article on the Fulton County Daily Report website (subscription required).