By Katie Hall, Reynolds + Rowella
The COVID-19 vaccine is providing many employers with the hope that things may soon return to normal—or as normal as can be considering a year-plus long pandemic. The vaccine certainly provides a glimmer of light at the end of the tunnel, but there are few things employers should consider while planning how to best protect their employees.
Let’s start with the most common questions:
Can we require all employees to get vaccinated?
The simple answer: Yes, but with exemptions. On December 16th, 2020, The Equal Employment Opportunity Commission (EEOC) released guidance specific to COVID-19 vaccination programs. While they have not expressly stated that employers can require vaccinations, it can be inferred that it may be permissible with certain exemptions. Specifically, employers must be prepared to exempt those with disabilities, pregnancy-related medical conditions, and/or religious objections.
The EEOC’s guidance states that the Americans with Disabilities Act (ADA) allows employers to require that individuals “shall not pose a direct threat to the health or safety of individuals in the workplace. However[…] if a vaccination requirement screens out or tends to screen out an individual with a disability, the employer must show that an unvaccinated employee would pose a direct threat due to a ‘significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.’” If an employee refuses to obtain the vaccine due to disability, the employer should evaluate whether they pose a direct threat by evaluating
- The duration of the risk;
- The nature and severity of the potential harm;
- The likelihood that the potential harm will occur; and
- The imminence of the potential harm.
If it is concluded that an unvaccinated employee would pose a direct threat to the worksite, the employer must then consider whether a reasonable accommodation can be made, such as allowing the employee to work from home or providing another mutually agreed-upon work arrangement.
Title VII of the Civil Rights Act of 1964 (Title VII) also provides certain exemptions. Once an employer is made aware of an employee’s sincerely held religious beliefs, practice, or observance that prevents them from getting the vaccine, the employer must provide a reasonable accommodation unless it results in undue hardship (as determined under Title VII) to the employer.
Can we fire an employee that refuses to get vaccinated?
If an employee cannot get vaccinated due to a disability or sincerely held religious beliefs and no reasonable accommodation is possible, then an employer can “exclude” the employee from the workplace. This does not mean that the employee can be terminated, but that the employer will need to determine if any other rights apply under federal, state, or local authority before making that decision.
Employers may be faced with a difficult situation if employees refuse the vaccine outside of protected reasons, especially if a large number of employees refuse. Employers may have to choose between firing a potentially large number of employees or taking these refusals on a case by case basis, which may leave the employer open to discrimination claims.
So we can require the vaccine- but should we?
It depends. In certain environments, such as in healthcare, a vaccination requirement may make sense so long as employers comply with ADA and Title VII. But what about for those who are not considered frontline workers? For these employers, the answer becomes a bit grey. Employers should consider the climate surrounding the vaccine, as well as the fact that many Americans are hesitant to get it. A mandatory vaccination program may take a hit on employee morale in certain instances. Additionally, employers should also be aware of potential worker’s comp claims should the requirement result in an employee developing complications from the vaccine.
What about providing incentives to employees to get the vaccine?
Currently, there is a lack of legal guidance from the EEOC surrounding incentives to get the vaccine. However, many large corporations are forging ahead with incentives despite this. Some of these incentives include one-time cash payments and paid time off to receive the vaccine. If an employer chooses to provide incentives, they should also consider how that may impact those that cannot get the vaccine due to disability or religious reasons. In order to avoid claims of discrimination, employers may want to provide other avenues to receive the incentive, such as taking a training on COVID safety precautions or periodic COVID testing.
As we await further guidance on this topic, providing education surrounding the vaccine in conjunction with a voluntary vaccine program may be employer’s safest bet.
As a Connecticut employer, what can I do now?
CT employers play a large part in getting CT residents vaccinated. The CT.gov website provides employers with information they need to help their workers gain access to the vaccine. According to the website, “Employers who have Phase 1b-eligible workforce should complete [the online VAMS enrollment form] in order to enroll in VAMS and enable their employees to schedule a vaccine appointment. Employers who do not have employees eligible in Phase 1b do not need to take any action at this time.”
Once an eligible employer has registered with VAMS, the employer can upload a roster of employees. Employees listed on the roster will receive an email from VAMS inviting them to schedule an appointment to receive the vaccine.
As with all things COVID-related, the rules are regularly in flux. Employers should check EEOC’s latest guidance prior to finalizing any vaccination programs or incentive plans for their workforce.
Katie Hall, PHR, Director, HR
With over a decade of diversified knowledge in HR, Katie has extensive hands-on experience leading HR initiatives including policy design, compensation, performance management, recruiting, compliance reporting, HR workflow development, training and development, and benefits administration. She assists R+R clients with recruiting and retaining quality staff and working closely with businesses in regards to their benefits, training and compensation programs.