Categories: HR & Employment Law | by Nicole Lopes

COVID-19 cases are on the rise in the United States again. After the excitement of restrictions being lifted and vaccinations becoming more widespread, this has a lot of Americans feeling very let down. It’s also led to a shift. The Biden administration has recently mandated vaccinations for all federal workers and contractors, and states like California and New York are doing the same for their government workers.


Since data shows that more than 94% of these latest reported COVID-19 cases are made up by unvaccinated people, this is also leading large companies to follow suit and require vaccinations of their employees. Industry giants like Disney, Google, Walmart, Lyft, and Ascension Health are just a few of the companies adapting vaccine policies for their employees.


If you’re interested in adopting a vaccine policy for your business, you probably have lots of questions. So let’s dive into the top five considerations for your COVID-19 vaccination policy.


1: Is a vaccine mandate legal?


Yes — with a few legal exemptions, employers have the right to set workplace conditions, and a duty to provide a safe workplace for employees. Thus far, one challenge to a vaccine mandate has gone to court in Texas, and the mandate was subsequently found to be in line with public policy. This doesn’t mean that there will definitely not be other cases taken to court, but the Texas ruling was persuasive enough to make further cases against mandates harder to win.


It is important that if you institute a vaccine mandate for your business, you apply it equally and  do not treat employees differently based on race, color, religion, sex, national origin, age, or genetic information. We’ll dive into a few legal exceptions and how to accommodate them below.


Additionally, the Equal Employment Opportunity Commission (EEOC) has stated that asking about COVID-19 vaccination status is not a disability-related inquiry under the ADA, as there are numerous reasons why people might not be vaccinated. So, requiring proof of vaccination is legal — with the exception of accommodations under consideration 2.


2: Are there legal exemptions to a vaccine mandate?


Yes. There are three limitations to vaccine mandates you should consider.


First, some workers will be protected by the Americans with Disabilities Act of 1990. If an employee does not get vaccinated against COVID-19 due to a disability (including pregnancy), a reasonable accommodation will need to be made.


Similarly, under the Civil Rights Act of 1964, employees with a religious objection to a workplace rule may require an accommodation.


And finally, businesses will need to continue to monitor state legislation and executive orders, since there are some Republican-led states seeking to limit requirements for vaccinations.


In these cases, what accommodations might you consider employing for your workers? You can require these workers to get tested for COVID-19 regularly and wear masks if they work onsite. You could also place them in a different role, or have them work remotely. Some businesses are even offering these types of alternatives to all of their employees in order to avoid legal challenges to vaccination policies.


3: Can I offer incentives to my employees to get vaccinated?


With the exception of employers who offer a COVID vaccination program directly to employees, yes! For example, food company Tyson is offering $200 incentives for employees once they are fully vaccinated. Other reported incentives have included gift cards, paid time off to get the vaccine and deal with any side effects, free childcare, and rides to vaccination sites.


4: What are the ethical considerations of mandatory vaccination?


There are a number of ethical considerations outlined by the World Health Organization (WHO) in an April 2021 one-sheet on COVID vaccine mandates. A few are obvious — citing things like sufficient evidence of vaccine safety, and the preference to encourage your employees to voluntarily get vaccinated before implementing a mandate. However, there are a few considerations that are less obvious, and therefore worth pointing out.


One is sufficient supply. If you are considering a vaccine mandate for your business, think about where you are located and verify that a COVID-19 vaccine supply will be available for your employees. Similarly, providing a reasonable amount of time for your employees to schedule and get their vaccination is an important part of your policy.


Secondly, transparency in your decision-making is a crucial consideration for a vaccine mandate or policy. Not only is this a best practice ethically, but it will improve your relationship with your employees and likely make implementation of your policy easier. You can share research you’ve performed, bring in doctors or other health professionals, and be clear and up front about expectations.


5: Are there additional COVID-19 policies I should adopt to protect my employees?


If you’re in a business where your employees must frequently interact with others, putting policies in place that also require vaccinations or mask-wearing of your patrons is a critical step to keeping your employees and other customers safe. If your employees are required to have COVID-19 vaccinations, but then have to interact with customers without any similar precautions, they can still be at a higher risk for infection, particularly with the Delta variant of the disease. By implementing vaccination policies for your patrons, you’ll also further demonstrate to your employees that you care about them and their families, and want them to have a safe working environment.