As the COVID-19 vaccine becomes more readily available, a question has arisen among business owners: Can you require your employees to get vaccinated? This question is especially relevant among caterers and event professionals who not only interact with the public, but who are also responsible for the health and safety of guests. To help answer many of the questions surrounding whether or not employers can require their staff to be vaccinated, the International Caterers Association hosted a webinar on March 2, “Vaccinating the Workforce for COVID-19,” with the legal team of Michael “Maz” Mazurczak and Lauren Fackler from Melick & Porter.
“We certainly have a long way to go,” Mazurczak said, “but this is a start.”
So, can employers require employees get vaccinated before returning to work? The short answer is yes. Such a policy may result in fewer employee absences, reduced healthcare costs, lessened anxiety, increased productivity, and decreased risk of spreading or getting the virus. Employers can also require new hires receive the vaccine upon an offer of employment as well.
However, employers should tread carefully when creating workplace policies mandating vaccinations because for all the added benefits, there just as many exceptions and challenges to consider.
“We obviously all want to go back to ‘normal’ operating conditions,” Mazurczak said, “but there’s a lot to consider.”
But first, let’s break down the vaccines currently available.
To date, the Centers for Disease Control and Prevention has approved three COVID-19 vaccines: Pfizer, Moderna and Johnson & Johnson. Whereas Pfizer and Moderna require two dozes, Johnson & Johnson requires only one. Both Pfizer and Moderna are thought to be between 94% and 95% effective, while Johnson & Johnson has an efficacy of around 82%.
Right now, the United States is administering 1.7 million doses of vaccine per day, which has resulted in 15.1% of the U.S population having received at least one dose, with 7.5% of the population being fully vaccinated.
Know your workplace
Workplaces that benefit the most from mandatory vaccination policies are those where work cannot be performed remotely, where employees are customer-facing (i.e., retail, restaurants), and where employees interact with vulnerable populations (i.e., hospitals and senior care facilities). If your employees can be spaced apart from one another, perform work in the open air, or can do work remotely, consider whether a more conservative approach is right for your business.
There is no doubt that requiring vaccinations will be unpopular for some employees. Employers should be prepared for the reality that they may lose workers who are unwilling to take the vaccine. Statistics show that 40% of U.S workers say they probably or definitely won’t get the vaccine.
Be mindful of vaccine availability — Employers should be mindful of availability and cost of the vaccine, and ensure that every employee required to get the vaccine has access to it (it is expected that insurance companies will waive costs associated with the COVID-19 vaccine). Employers may consider offering on-site vaccinations to ensure access and availability, and providing a window within which employees are required to get the vaccine.
“You can think about offering other types of benefits to make it easier and more accommodating for people to get the vaccine,” Mazurczak said, “especially given that some folks have angst about getting the vaccine in the first place.”
Know which employees cannot be mandated to get a vaccine, and how to treat those employees
Employees with disabilities (as defined by the Americans with Disabilities Act), or whose sincerely held religious beliefs, practices, or observances (as defined by Title VII of the Civil Rights Act of 1964) prevent them from taking the vaccine must be offered “reasonable accommodations” unless such accommodation would pose an undue hardship to the employer.
Know what you can request to prove exemption from the policy
Employees who specifically ask for an accommodation based on a limitation or disability can be required to provide the nature of that limitation or disability, and the effect that the vaccination would cause. The employee also may be required to provide a doctor’s note to confirm the employee’s disability and need for accommodation.
“Me not liking needles is not going to be an accepted disability,” Mazurczak said.
Employers must be sure not to exempt employees from any mandatory vaccination policy on a case-by-case basis (for instance, supervisors cannot allow employees who are apprehensive about taking the vaccine, without a valid exemption from the requirement, to forego getting vaccinated).
If employers are considering work from home to be a reasonable accommodation for some employees with ADA or Title VII exemptions, but not for others, the employer should establish a set policy by which employees are eligible to work from home (i.e., employees who meet certain clearly enumerated productivity metrics, or employees who hold certain job titles).
As with any other workplace policies, employees who are similarly situated should be treated the same.
Reconsider financial incentives
In lieu of a mandatory vaccination policy, some employers are considering employee bonuses and other incentives for those employees who get the vaccine. These types of incentives cause employers to treat employees differently based on metrics that are not work or productivity related, and may be exclusive of employees who opt out of vaccinations because of an exemption. For these reasons, you should review specific financial incentive plans with your attorney prior to implementation.
Know what employer protections are available
Private employers who implement requirements to use covered countermeasures (such as vaccines) to treat, cure, prevent or mitigate COVID-19 may be considered “program planners”/”covered persons” under the Public Readiness and Emergency Preparedness Act (PREP Act). The PREP act immunizes covered persons against any claim of loss caused by, arising out of, relating to, or resulting from the use of covered countermeasures. This and other available protections may be available to employers, and should be discussed with your attorney.
Whether or not you decide to implement a mandatory vaccination policy, it's important to stay diligent about ensuring a safe workplace.
“You need to be actively listening to your employees’ concerns,” Fackler said.