You’re Open For Business! Require Or Encourage Employee Vaccinations?

To rebuild relationships and foster collaboration, employers will need people to return to offices. Should employers require employee vaccinations?

Short Answer. Most employers – unless they are in health care – should encourage rather than mandate employees get COVID-19 vaccination. Unless the employer is able to demonstrate the vaccine should be mandated because it is job-related and consistent with business necessity or is justified by a direct threat, the potential for disputes is very real. If an employer does mandate vaccination, it must be prepared to allow accommodations and exemptions particularly due to disability and religion. These requirements should be clearly communicated to employees, and the employer should designate and train staff to handle requests for accommodations and exemptions.

Longer Answer. Requiring employees to present proof of vaccinations as a condition of returning to the office is not as straightforward at it might sound. There are lots of questions. What about employees who refuse to get vaccinated for personal or religious reasons? Would requiring proof violate HIPAA because you’re asking people to confirm if they got the vaccine or not? Can employers offer incentives to employees to get vaccinated and back to the office as soon as possible?

Who could argue with an obvious safety requirement? Under OSHA’s general duty clause an employer must provide a workplace “free from recognized hazards that are causing or are likely to cause death or serious physical harm”. So, from a safety perspective, a vaccination requirement seems like a no-brainer, but there are other concerns.

The Americans with Disabilities Act generally prohibits employers from mandating vaccinations unless they are job related and consistent with business necessity and are otherwise no more intrusive than necessary. This is difficult to prove for most employers unless they are in health care.

Then there is the religious exemption. An employer cannot take adverse action against an employee who refuses to get vaccinated if they have a disability or religious objection to the vaccine. These employees require a reasonable accommodation and remote work from home is a reasonable accommodation. However, employees may not qualify for religious exemption if they admit that they received other vaccines in the past, and are simply uncomfortable with the COVID-19 vaccine.

In considering “reasonable accommodation”, an employer may take into account whether the exemption creates an undue burden for the employer. In the context of the pandemic, an employer must balance the burden of having an unvaccinated employee in the office against potential risks posed to others.

What about incentivizing employees to get the vaccine? It may be useful to offer extra paid time off or adding PTO and incentives to go out to get the vaccine.