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Can I Require My Employees to Receive the COVID-19 Vaccine?

HR Question:

As vaccines continue to roll out, can I require that my employees receive the vaccine?

HR Answer:

Many employers are now beginning to face the difficult decision of whether or not to require vaccines for their employees. Some employees may refuse to come back into the office without it, others may staunchly refuse to receive the vaccine right away or at all. So how are employers expected to navigate this world of grey regulations and guidelines?

Can Employers Require Their Employees to Receive the Vaccine?

The answer? It’s complicated. In order to address some of the various guidelines, requirements, and generally muddy waters that the vaccination presents, the Equal Employment Opportunity Commission released some guidance for employers.

In fact, Graydon Law summarized some of the available guidelines for employers to consider when implementing such a policy. While this may allow employers to have a better understanding of some of the nuanced situations they may face when implementing a mandatory vaccine policy, no one should go it alone. To answer our first question: while it’s possible for employers to implement a mandatory employee vaccination policy, they should not do so without consulting legal counsel.

Should Employers Require Their Employees to Receive the Vaccine?

This answer is a little more difficult to pin down.

In an HR Question of the Week for Strategic HR, Lee Geiger, Graydon Law attorney and our valued partner, raised some excellent questions for business leaders to ask themselves before establishing a mandatory vaccine. Issues such as industry patterns and potential exposure related to the company’s services are given questions with more concrete answers. Additional questions such as internal logistics, consequences for those who refuse the vaccine without ADA protection, and deciding who in the company will serve (as Geiger put it) as the “Vaccine Police” may begin to further cloud the situation.

Can an Employer Provide Incentives to Employees for Getting the Vaccine?

While this may seem like a great way to encourage all of your employees to get vaccinated, it can lead to even more issues.

  • In the EEOC’s eyes, the vaccination is seen as a wellness activity which is currently under review as it relates to incentives.  As of May 4, 2021, we still await technical assistance direction from the EEOC on whether or not vaccine incentives can be offered.  In a statement on April 22, 2021 the EEOC indicates that guidance will be issued with no date on when that will occur.
  • Under the Fair Labor Standards Act (FLSA), remember if you offer cash, it could be viewed as a nondiscretionary bonus which means you may need to adjust the pay to any non-exempt employees who worked overtime during the same period that they received the cash incentive. Also, you may be required to pay the employee for their time to get the vaccination.
  • If you don’t allow employees in the workplace without the vaccine, you run the risk of actually not having enough employees to run the business.
  • Employee engagement may be impacted as some employees see this as their decision and their employer shouldn’t be telling them what to do in this regard.
  • If an employee does get the vaccine, what liability would you as an employer have if the employee had side effects? Would it be a workers compensation issue or worse – a legal issue?
  • The legal alphabet soup gets even more complicated when you consider OSHA (Occupational Safety and Health Act) requirements, which require employers to provide a safe workplace, or NLRA (National Labor Relations Act) in which an employer cannot impact a worker’s “concerted activity.”

Nothing about COVID has been easy and the rules seem to continue to change daily.  Perhaps one approach may be to help educate employees on the impacts of COVID, the benefits of the vaccine, and additional preventative measures to be taken.

As employers, it very hard to navigate what to do in our workforces. Mandating or incentivizing getting the vaccine is meant to protect employees and customers.  However, it can actually lead to many other complicated issues.  Employers will need to take a close look at the impacts of mandating or incentivizing and decide if the need for the vaccine in their workplace outweighs those risks.