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► Voluntary Or Mandatory COVID-19 Vaccinations? You Decide

Employers are weighing whether to require or simply encourage employees to get the COVID-19 vaccine when it becomes more readily available. Here are some pros and cons, legal concerns, and practical issues to consider.

Making shots mandatory:

Employers may want to implement a mandatory vaccination program to reduce the risk of absenteeism and exposure to third parties, such as customers and patients. Employers generally have the right to do so.

Legal considerations. Legal exceptions to mandatory vaccinations can arise under both the American with Disabilities Act (ADA) and Title VII of the Civil Rights Act of 1964 (for religious accommodations). Under the ADA, if an employee has a medical basis for refusing to get the vaccine, you may confirm the reason and then consider a reasonable accommodation. The possibilities include allowing the individual to wear personal protective equipment (PPE) or determining if telework is appropriate. Ultimately, if an accommodation cannot occur, you may suspend or separate the employee.

Under Title VII, you may ask employees for confirmation of their religious belief, practice, or observance that precludes them from taking the vaccine. Note, however, the religious belief doesn’t have to be associated with an organized religion—it need only be sincerely held and religious in nature. Then you would consider a reasonable accommodation, as under the ADA.

In both situations, the accommodation doesn’t require you to create or find a job at the same pay rate. It may pay less.

Practical considerations. What if a substantial number of employees refuse to get the vaccine for personal (but not religious or medical) reasons? Although you may fire them in most cases, that isn’t necessarily a practical approach. If you anticipate a substantial portion of the employee population will reject the vaccine, you should promote education and demonstration and consider incentives (see more details in the following section).

Another challenge: How will you handle the various timetables of when vaccines will be available based on age, medical condition, and job responsibilities? You shouldn’t ask employees about their medical conditions, but you may query which “group” they’re in, as long as the priority groups continue to include both disabled and nondisabled individuals.

Finally, how will you handle job applicants? As with other conditional-offer medical questions, you may require confirmation of the applicant’s vaccination. You may notify the individual that a vaccine is required. Should she respond with an ADA or religious basis for not getting the shots, then you should move on to the reasonable accommodation discussion.

Public health polls now show more people will take the vaccine than surveys reported between August and October 2020. If you wish to make the shots mandatory, set a realistic date by when they must occur.

Encourage voluntary vaccinations:

Many of you will choose not to require employees to receive a COVID-19 vaccine, at least in 2021, for a variety of reasons:

•  General management beliefs and practices;

•  Logistical challenges of determining who can reasonably receive the vaccine;

•  Low impact or spread in the community;

•  Ability to accommodate virus-related absences or continued alternate work arrangements;

•  Worries (especially for public employers) about the legal impact of the vaccine’s emergency use authorization status;

•  Lack of will/desire/expertise to sift through the accommodation requests that a mandate might generate; and

•  Concerns about how a mandate would affect employee morale.

We don’t quibble with any of these reasons, and we affirm your right to make difficult decisions at all times, especially now.

If you want employees to be vaccinated but don’t wish to mandate it, we suggest education, demonstration, access, and incentives.

Education. Engage with employees at shift meetings, company-wide e-mails, bulletin boards, and newsletters about the vaccine's efficacy and safety and where they can receive it. Consider holding video conferences with healthcare professionals to answer questions about the pandemic and their experience with the vaccine.

Another approach: Gather questions from employees for a local doctor or public health expert to answer in writing or by recording. (We think local voices and faces can be more persuasive than national experts and probably more available, too.)

Demonstration. Encourage management to get vaccinated with employees if you’re able to provide on-site vaccination, or, if not, photograph their experience and post it on social media, the company intranet, bulletin boards, and so on. Leaders need to be out in front, putting their arms where their mouths are.

Access. If you have adequate facilities, reach out to local health authorities and pharmacies and ask to partner by hosting vaccination clinics.

Surveys suggest the majority of Americans don’t have set-in-stone opinions about the vaccine. Removing the real (or perceived) barriers of having to request time off from work to go to a clinic/parking lot/convention hall across town twice over two or three weeks will almost certainly result in some choosing to get vaccinated if the shots come to them.

Incentives. You may incentivize employees to receive the COVID-19 vaccine. Unfortunately, federal guidance on the amount of incentive you may provide is stuck in limbo for now. We think $50 is an amount unlikely to be challenged as “so substantial that it makes an employee’s participation less than voluntary.” There are also psychological reasons to keep the incentives modest because studies have found large bounties communicate the idea a large risk is being undertaken.

Final caveat: Employees who can show they genuinely can’t receive the vaccine because of a disability should still receive the incentive or have an alternative, nonstigmatizing way to participate in the program and get the prize. We don’t know of an alternative other than the public health measures that should already be broadly implemented, so in most cases an employee with a disability would receive the incentive after substantiating their disabling reason for not receiving the vaccine.

By Richard I. Lehr.  Mr. Lehr is an attorney with Lehr Middlebrooks Vreeland & Thompson, P.C., in Birmingham, Alabama. 

[2/2021]
 

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