New Year, New COVID Questions: Mandate the Vaccine? Extend Paid Leave?
Last Updated on November 15, 2021 / COVID-19, Legal Compliance
Although I was hoping to leave the challenges of 2020 behind, I’m finding that they’re seeping into 2021 – along with new challenges. Now, I’m faced with new COVID questions to confront: mandate COVID vaccines … or not? Extend Paid Sick Leave and EFMLA … or not? How do I make the best decisions here?
Unfortunately, COVID is still with us, but hope is on the horizon with the vaccine. Employers across the country (and the world) are struggling with the same COVID questions you are about whether or not to mandate that all employees get vaccinated. The EEOC has made it clear that employers CAN require that employees get the COVID vaccine (in most cases). However, the question becomes whether employers SHOULD require it. There is no perfect answer, so we’ll default to the typical lawyer answer: “It depends.”
Companies need to consider whether mandating vaccination is necessary. Because each business is different, there is no universal litmus test for employers.
Here are some common factors that employers should consider:
- In what industry is your company? (Healthcare is different than construction.)
- What are other similar businesses doing? (We’re all in this together.)
- Are your employees designated to an early phase/group for vaccine eligibility?
- If not, when could you reasonably expect the vaccine to be readily available? (There’s no need to create a stir now if your employee population consists primarily of healthy people in their twenties and thirties who will be toward the end of the eligibility list.)
- If there is continued exposure, how will that harm your business?
- How will your employees react?
- What will the consequence be for employees who refuse to get vaccinated?
- Who is going to be the “Vaccine Police” and track everything? (“1, 2, 3 … Not IT!”)
It’s okay to take a “wait and see” approach
These are not easy questions. Keep in mind that the law requires employers to make accommodations for individuals with disabilities and religious concerns. Also important: there is no prize for being the first to mandate vaccination. At this point, many businesses are encouraging employees to get vaccinated, but taking a “wait and see” approach when it comes to mandating. Part of the “encouraging” process includes educating employees about the benefits of vaccination. This includes reminding them that the company will not be providing paid leave if they are off for COVID purposes. If your employees are already on board with vaccination, there is no reason to take a heavy-handed approach.
Should you extend Paid Sick Leave and EFMLA?
The other COVID questions keeping HR professionals awake at night is what to do about extending Paid Sick Leave and Emergency FMLA. Congress and the President gave companies the option to continue providing these leaves to employees and receive tax credits through March 31, 2021. Many of our clients are continuing the leaves. Some are not.
Here are factors to consider:
- How has leave usage impacted staffing and customer service?
- Have employees been using the leave properly or abusing the leave?
- Is it a hardship on the company or other employees to continue providing leave?
- What is the impact on employees who legitimately need the leave?
- How will the decision impact employee morale?
- How many employees are currently on leave?
- Is the employer a public or private entity?
Communication is key
Regardless of your decision, communication is key. It is critical for employers to communicate the decision to end or extend benefits so that employees are aware of their options. The decision should be company-wide so there is no favoritism of one employee versus another.
As usual, things with COVID continue to evolve. Good ideas a few months ago may be bad ideas today, so make sure to keep up to date. I know we’re all tired of hearing about these “unprecedented times,” but nonetheless, we will carry on. Deep breaths. Smile. 2021 is going to be better. Bring. It. ON!
Special thanks to attorney Lee Geiger from Graydon for contributing to this issue of our HR Question of the Week! As a valuable partner to Strategic HR, we appreciate both his legal expertise and wit.
Whatever HR challenge your business may be facing, Strategic HR can help! Whether it’s by developing a comprehensive strategic business plan through our HR Strategy services or helping you navigate COVID-19 HR strategy issues, our team of experienced consultants is waiting to partner with you.