Thinking About a COVID-19 Vaccine Mandate? 5 Things to Consider
By Terri Dougherty
J. J. Keller & Associates, Inc.
After months of COVID-19-related workplace upheaval, requiring employees to get the COVID-19 vaccine might seem like the easiest way to get things back to normal.
While the vaccine is certainly welcome step in the right direction, there are a number of things to consider if you’re thinking about making it a workplace requirement.
Equal opportunity protections, union contracts, and workers’ compensation issues all enter the picture. If you are contemplating mandating COVID-19 vaccinations for employees, consider the following:
The Americans with Disabilities Act (ADA) comes into play here. An employer would need to assess whether the unvaccinated employee would pose a direct threat to the workplace. This involves looking at:
- What if an employee can’t get the vaccine because of a medical condition?
If an unvaccinated employee would pose a direct threat, employers need to talk (technically, engage in the interactive process) with the employee about options, and consider whether there is a reasonable accommodation that can be provided.
- the duration of the risk;
- the nature and severity of the potential harm;
- the likelihood that the potential harm will occur; and
- the imminence of the potential harm.
Possibilities include use of personal protective equipment, teleworking, or a leave of absence. An accommodation doesn’t need to be granted if it poses a significant difficulty or expense to the employer’s business operations.
The Equal Employment Opportunity Commission (EEOC) notes that an employer may not automatically terminate the employee.
Title VII of the Civil Rights Act protects workers who have a sincerely held religious belief, practice, or observance that prevents them from receiving a vaccination, so a reasonable accommodation also needs to be considered in this situation. In this case, it does not need to be granted if it would pose more than a “de minimis” cost to the employer.
- What if an employee has a religious objection to the vaccine?
Check the contract to see if a vaccine mandate is something that needs to be bargained with the union.
- What if our company has a union contract?
If a vaccine is mandated and an employee has an adverse reaction, it’s possible the employee could file a workers’ compensation claim. It might also be a recordable illness under OSHA requirements.
- What if an employee has an adverse reaction to the vaccine?
Yes. Depending on your industry and the nature of your business, this might be a better option. You may wish to help employees obtain access to the vaccine and encourage them to take advantage of its protection if they’re able.
- Can a workplace encourage, rather than require, employees to get the COVID vaccine?
This allows you to protect your workforce without taking on the additional issues that come with a mandate.
Each workplace is different, and your vaccination policy is going to depend on whether an optional vaccine or a mandate and its additional considerations are best for your workforce.