Taking Your Best Shot: Deciding If Mandating COVID-19 Vaccines Is Best for Your Business

Human resources leaders and managers know how disruptive the COVID-19 pandemic has been for small and large businesses in the United States and throughout the world. There’s also no doubt that employers are eager to get their employees and workplaces back to “normal”, or close to it, as soon as possible. As part of this effort, organizations must address the questions and issues surrounding mandatory COVID-19 vaccinations.

Back in the office: whether employees wear masks may depend on their employer’s vaccination policy

For example, will your coronavirus vaccination policy be voluntary or mandatory? How long will you give your employees to get fully vaccinated? Addressing these questions is critical, given the spread of the Delta variant, and that a healthy and productive workforce is the main fuel most businesses run on.

With over 50% of adult Americans now completely vaccinated against COVID-19, many companies have started to lay the groundwork for the return to the office. So it’s natural that with the free and widespread availability of COVID-19 vaccines, business owners – particularly those operating in high-risk environments – are examining what their rights and obligations are for requiring their employees be vaccinated before returning to work in person.

While the Equal Employment Opportunity Commission (EEOC) has given companies the option to mandate that their employees have COVID-19 vaccinations as a prerequisite to return to the workplace, there’s a range of complex and nuanced issues HR managers need to consider before developing their workplace vaccination policies. 

In order to keep your workplace compliant and safe, you need to understand what your options and responsibilities are before mandating vaccinations. Remember, you’re dealing with a complicated and sensitive issue, which really hasn’t been addressed before. Knowing and understanding where to start can feel challenging and overwhelming.

Can You Require Employees to Get Vaccinated?

According to guidance from the (EEOC), a mandatory COVID-19 vaccination program isn’t prohibited. However, as a manager, you have to be aware of the various legal implications. It’s worth noting that, although case law is considerably more focused on vaccine mandates from the federal government than the private sector, mandatory COVID-19 vaccine programs have mainly been upheld against various civil liberties challenges.

Although you can legally require your employees to get the COVID-19 vaccine, there are some labor and employment laws to consider. For instance, Title VII of the Civil Rights Act of 1964 makes it unlawful or illegal for any employer to discriminate against an employee based on their color, race, religion, and sex.  As a result, if you require mandatory COVID-19 vaccinations as a condition of employment, you’ll have to provide reasonable accommodations for those employees with specific religious practices, beliefs, or observances that may prevent them from getting vaccinated. Additionally, employers must fully comply with their obligation to accommodate an employee’s disability.

Should You Mandate COVID-19 Vaccinations?

Even though your company can legally require employees to get the COVID-19 vaccine, the question becomes whether you should or not, and what the benefits and risks of doing so are.

While there are clear benefits to requiring your employees to get the vaccination, make sure to weigh the risks before making any policy decisions.

For example, firing employees for rejecting a COVID-19 vaccination mandate may trigger discrimination lawsuits. This is especially true when the reasons for the rejection may include a legally protected status, such as an employee’s religious beliefs, medical condition, or healthcare privacy. 

Under the Americans with Disabilities Act (ADA), employers are required to provide reasonable accommodations to their qualified employees and workers with a disability. This is true unless the employer can show the accommodation would likely create an undue hardship.

Note that if the employee requesting a reasonable accommodation is fully covered by the ADA, you may find that the undue hardship standard of the ADA is harder to demonstrate compared to the standard under Title VII. Keep in mind that, as with most requests for accommodation due to a disability, engage with your unvaccinated employee to identify any potential workplace accommodations.

Your employees may also be entitled to another type of reasonable accommodation under Title VII. As an employer, you must provide accommodations for your employees’ sincerely held religious beliefs and conventions when it comes to COVID-19 vaccine requirements.

Choosing Incentives over Mandates

Many major U.S. employers are stopping short of making COVID-19 vaccination a return-to-work requirement, instead exploring hybrid work models and incentive programs. For example, if your business or industry allows for some flexibility to provide employees with remote work options, you’ll likely have a much easier time encouraging vaccination participation among your workforce as opposed to requiring it. 

Some companies are incentivizing employees by simply highlighting the freedom they can have if vaccinated, such as forgoing social distancing, mask wearing, as well as being able to work more closely with their colleagues. In turn, major employers, including Kroger, Petco, and Target are rolling out monetary incentives in order to get otherwise reluctant and hesitant workers to get vaccinated.

Questions to Consider

There are many factors to weigh when deciding whether to require COVID-19 vaccinations. For example, what are the benefits of requiring vaccination? 

There is no doubt that having a workforce that is better protected against COVID-19 is the biggest advantage, improving productivity, efficiency and compliance with laws, such as Occupational Safety and Health Administration standards. It can also help foster a return to normalcy, recapture company culture, and drive the creativity and innovation inspired by direct interaction.

Another question to consider is what the limitations and implications of requiring vaccination are? Implementing an organization-wide vaccination mandate may create more issues than it solves, particularly in the areas of administration and compliance.

Is Requiring COVID-19 Vaccination Necessary? 

Organizations and industries at higher risk for coronavirus exposure, or companies that frequently work with high-risk individuals, such as healthcare facilities, would certainly benefit from mandatory COVID-19 vaccination policies, while lower-risk work environments should carefully consider whether a mandatory vaccination policy is necessary for their business or company in light of available alternatives, like remote work options.

As mentioned, there are many benefits of mandating vaccines in the workplace. Perhaps most importantly, mandating vaccines gives your employees greater confidence and assurance in the safety of their workplace and their co-workers in it.  

Another benefit of mandating COVID-19 vaccines is that it shows that you are doing everything reasonably possible to protect the health and well-being of your workforce.

Lingering Concerns

You may know that all of the COVID-19 vaccines have gone through the Food and Drug Administration’s Emergency Use Authorization instead of the standard, longer approval process. It is worth noting that due to the expedited approval process, the COVID-19 vaccines have to be accompanied by suitable information on the legal rights to refuse the drugs under the relevant federal law.

This is why any employee terminated or fired for refusing the vaccine might have a valid claim for wrongful termination. Another risk is that, if an employee experiences an adverse reaction to the COVID-19 vaccine, they might file a workers’ compensation claim or sue. The COVID-19 pandemic has forced employers to consistently adapt and evolve to a rapidly changing environment, and devising the most appropriate vaccination policy for your business and your employees is just another challenge to address and overcome. As an HR leader or manager, you should explore your options and weigh alternatives, determine the best path for your organization, proceed cautiously, and remember to remain nimble and adaptable when circumstances shift or improve. If you would like to know more about how you can better prepare yourself for the new normal, download this free eBook.

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