Risk and Compliance

Vaccinating the Workforce

Four key considerations to build an informed workplace policy.

By Kate Hill

While COVID-19 vaccines have instilled a sense of hope in the business community, they have also brought numerous questions for many employers and employees. In what is largely uncharted territory, HR professionals and business leaders are struggling with how to implement a vaccine policy for their workplace that prioritizes employee health and safety while protecting the business against any potential risks.

In December 2020, the Equal Employment Opportunity Commission (EEOC) updated its “COVID-19 Technical Assistance,” providing guidance to employers about how a COVID-19 vaccine policy interacts with the legal requirements of certain federal laws. However, many questions remain unanswered and several states are planning to share guidance as well.

While HR professionals await more governmental guidance, understanding the risks and responsibilities associated with certain vaccine policies can help businesses better prepare for a time when the vaccine is more widely available to the general public. It is important that employers have a strategic plan in place and are ready to implement it. There are four key considerations for employers when introducing a COVID-19 vaccine policy.

1. Stay informed. There are many moving parts to consider as employers develop and implement a workplace vaccination policy. It’s more important than ever that employers and HR leaders take the initiative to stay informed about the fluid landscape, including employer rights and obligations under federal, state, and local laws and regulations.

Between the new presidential administration, the recent shift in power in Congress, and new leadership at the Center for Disease Control and Prevention (CDC), there may continue to be fast-moving developments around COVID-19, many of which could impact how businesses approach vaccine plans. Developments may include availability of the vaccine, eligibility to receive it, and guidance related to employer COVID-19 vaccination incentive programs.

2. Develop a plan. When considering whether to mandate or encourage COVID-19 vaccinations, employers need to focus on their specific business needs and workplace conditions. Employers should also be dialed into their local health department resources and pay close attention to their local infection rates to help decide if they should consider requiring vaccinations for some or all employees.

Before deciding to require vaccinations, employers should consult with their legal counsel. Whatever decision they make, they should take care to document both the decision-making process and the policy created. If they decide to require proof of vaccination, they need to communicate the policy to their staff, respond to any requests for an exemption from the policy, and maintain confidentiality throughout the process. Given the rapidly changing landscape, employers must continually evaluate any vaccine-related policy.

The Americans with Disabilities Act (ADA) allows employers to establish a qualification standard that requests that “an individual not pose a direct threat to the health or safety of others in the workplace.” Therefore, according to the current guidance from the EEOC, requiring employees to get a COVID-19 vaccine does not violate federal law as the virus presents a “direct threat.” However, an employee could have a medical condition, perhaps including pregnancy, that would be considered a disability under the ADA, or a covered condition under state or local laws that may impact their ability to receive the COVID-19 vaccine. In other cases, an employee may have a sincerely held religious belief that prevents them from being vaccinated. In both circumstances, such employees may be eligible for a reasonable accommodation from their employer.

It’s important to note that employers who request or require their employees to be vaccinated may also need to compensate non-exempt employees for their time spent obtaining the vaccination, including traveling to and from the vaccination site.

Other employers may seek to implement a plan that encourages but does not mandate vaccination. Employers should research any potential incentive offer they are considering making available to those who receive a COVID-19 vaccination. Incentive examples could include things like company merchandise (water bottles, apparel, etc.); a set amount of paid time-off to receive a COVID-19 vaccination; flexible scheduling options so that employees are able to receive both doses of the vaccine as it becomes available; or a one-time payment to employees who can prove that they are fully vaccinated.

It’s important to note that depending on the type of incentive and the type of information that employers require from their employees, some incentive programs may fall under the rules governing employer wellness programs. Therefore, employers are encouraged to consult with their legal counsel before implementing any incentive program to help ensure compliance with applicable federal, state, and local laws.

3. Clearly communicate. Once businesses have developed their plan related to COVID-19 vaccinations, it will be crucial to clearly, consistently, and proactively communicate it to employees. As much as employers are feeling the weight of the COVID-19 pandemic, employees are feeling it, too. Efficient communication is paramount for maintaining a strong, positive company culture.

After consulting with their legal counsel, employers who plan to mandate COVID-19 vaccinations for some or all of their employees should effectively communicate their reasoning to employees and their plans related to reasonable accommodations. Offering a consistent and clear message regarding the plan suggests transparency and can mitigate future confusion or complaints. Companies that span across multiple states may also need to develop localized vaccine policies depending on local and state laws.

Employers who plan to encourage employees to receive the COVID-19 vaccination -including those who plan to implement an incentive program -should also plan to communicate proactively with employees.

4. Seek out valuable resources. As always throughout the pandemic, the priority of every HR leaders should be helping to maintain the safety of employees and complying with applicable federal, state, and local laws and regulations. As such, employers must take the time to weigh the risks and responsibilities in relation to various COVID-19 vaccine policies.

If an employer is considering a mandatory vaccination plan or incentive program, they should seek legal counsel as there continue to be many unknowns related to such programs. With guidance, employers can better understand the potential risks associated with their policy making, which will in turn enable them to make more informed decisions for their business.

What’s Best for the Business

Questions are swirling for HR managers about how to implement a COVID-19 vaccine policy as vaccines become more widely available to the public. Can employers mandate that employees get the vaccine -and is that the right thing to do? Should employers encourage employees to get vaccinated? What potential liabilities come along with that decision? These questions and more are on the minds of HR professionals. By building out a comprehensive strategy early on and getting buy-in from leadership, HR professionals can feel confident knowing that their COVID-19 vaccine policy will help keep their employees and customers safe.

Kate Hill is employment law compliance analyst for Paychex.

Tags: Risk and Compliance

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