As a result of the widespread availability of coronavirus (COVID-19) vaccines and the easing of coronavirus-related restrictions by state governments, more employees are returning to the workplace, leaving employers to face difficult questions surrounding how to best protect the health and safety of their employees. Such decisions can have a lasting impact on an employer’s business and implicate a variety of state and federal laws.
Employers must make the important decision whether to require their employees to be vaccinated as a mandatory condition of employment, encourage their employees to be vaccinated on a purely voluntary basis, or stay silent on the matter of employee vaccinations. Each choice comes with its own set of business and legal considerations. Below are some key considerations in making this important determination.
OPTION #1: Mandating Employee Vaccinations
Employers may lawfully require all employees physically entering the workplace to receive COVID-19 vaccinations. However, in accordance with the Americans with Disabilities Act (ADA) and Title VII of the Civil Rights Act of 1964 (Title VII), employers must provide reasonable accommodations for employees who refuse to be vaccinated based on disability-related reasons and sincerely held religious beliefs, unless providing such accommodations would pose an undue hardship for the employer. Employers must work cooperatively with such employees and engage in the “interactive process” (i.e., a collaborative dialogue) to find a solution that allows these employees to perform their essential functions of their job positions without imposing significant difficulty or expense on the employer. Examples of potential reasonable accommodations for such employees include telework, requiring the use of masks or other personal protective equipment, social distancing, schedule changes, or reassignment. The ADA also requires employers to keep any documentation or confirmation of an employee’s COVID-19 vaccination confidential.
Additionally, mandating vaccinations can implicate a variety of other labor and employment laws. For example, under the Fair Labor Standards Act, the employer may be required to cover the cost of a mandatory vaccination and pay an employee for time spent getting the vaccine, if such costs would decrease the employee’s salary below minimum wage. If employers have a unionized workforce, a mandatory vaccination requirement may need to be collectively bargained before a mandatory vaccination policy can be implement.
OPTION #2: Incentivizing Employee Vaccinations
There are valid business and legal justifications for choosing to incentivize employees to be vaccinated as an alternative to implementing a mandatory vaccination policy. For example, an employer may prefer to avoid the administrative burden of implementing a mandatory vaccine policy or having to determine whether or not it can terminate or discipline employees who fail to comply with its mandatory vaccination policy.
Many businesses have opted to encourage their employees to become vaccinated by offering employees additional paid time off (PTO), bonus payments, gift cards, or other incentives. Employers may also provide employees and their family members with educational information about COVID-19 vaccines in order to raise awareness about the benefits of vaccination and address common questions and concerns. However, an employer will need to consider the ADA and Health Insurance Portability and Accountability Act (HIPPA) rules applicable to wellness programs and tax considerations under the Internal Revenue Code if it chooses to offer cash payments or gift cards in exchange for employee vaccinations.
OPTION #3: Stay Silent
Some employers may opt to neither mandate nor incentivize vaccinations for its employees. While not taking a definitive stand on the topic of employee vaccinations eliminates the need to develop a formal policy, an employer’s choice to stay silent may lead to allegations that the employer failed to take steps to protect its employee’s health and safety.
If employers decide to mandate or incentivize employee vaccinations, such employers should develop a written policy. When deciding whether and how to implement such policy, employers must make sure their decision process is reasonable, thoughtful, and calculated to balance business and legal considerations. Obtaining legal guidance from a trusted advisor can help employers navigate the decision making process, design a policy that is legally compliant, and avoid the pitfalls that result from failure to comply with federal and state laws.
BHMK has a team of lawyers dedicated to helping clients navigate the complex employment law issues caused by the COVID-19 pandemic. To learn more, visit our website, or contact a BHMK attorney to obtain individualized direction and advice for your business.