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By: Ber Leary on September 2nd, 2021

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Vaccination Policy: What Every Employer Needs to Know

Risk Management | COVID-19

The Covid-19 vaccination program is now entering its final phase. As it stands on September 1, just under 52% of Americans are fully vaccinated, with another 10% having had their first shot. All of which means that employers can now start thinking about asking people back to the office.   

But now there's a new headache - how do employers keep track of who's vaccinated and who's not? Can you ask employees for evidence of their vaccine status? What happens when someone can't or won't get vaccinated? 

Around 14% of Americans refuse to get the vaccine, while another 13% want to put it off as long as possible. Meanwhile, around 60% of workers say they don't want to work in the same space as unvaccinated colleagues.

So, how can you create a vaccination policy that works for everyone on your team?  

Is it legal to require proof of vaccination? 

Although the government is in favor of universal vaccination, there is currently no federal vaccine mandate in any circumstances. 

Instead, each state is free to implement their own laws. Individual states have gone in opposite directions depending on their local government. Some have implemented mandatory vaccine rules for public sector employees or health workers, while other states have banned any attempts to discriminate between the vaccinated and unvaccinated. 

Employers should check with their local authorities to confirm the current rules in their area. As it stands, some notable state laws include: 

  • Virginia: All state workers and healthcare professionals must be vaccinated or else take a weekly Covid test.
  • Maryland: All state employees who work in "residential facilities operated by the state or a local health department, state correctional facilities, state juvenile service facilities, veteran homes, and other congregant living facilities" must be vaccinated or have weekly tests. 
  • District of Colombia: All employees of DC agencies must be vaccinated or undergo weekly tests. All contractors and grantees are required to ensure that their employees, agents, and subcontractors are vaccinated.
  • Pennsylvania: Employees in state-run congregant care facilities must be vaccinated or undergo weekly testing.  

Montana and North Dakota have both banned mandatory vaccines in public and private employment.

Twenty states, including Florida, Texas and South Carolina, have passed legislation against vaccine passports, or other official documents that prove vaccination status. These laws make it harder for employers to distinguish between vaccinated and unvaccinated employees. 

If your state doesn't have a specific law concerning vaccine status, then you most likely fall under federal guidelines, which will involve complying with EEOC guidelines. 

How employment law impacts a mandatory vaccination policy 

The Covid-19 response is an evolving situation, with regular changes to the rules and guidelines issued by federal authorities. For employers, this makes the situation even more challenging, as you have to tread carefully in case your policy turns out to be discriminatory.

The Equal Employment Opportunity Commission (EEOC) has been one of the most important bodies in these decisions, as they play a major role in defining what employers can and can’t do. The EEOC updated its operating guidelines at the end of May 2021 to include the following Covid-specific guidelines for employers:

  • You can exclude an unvaccinated employee from the workplace “so long as employers comply with the reasonable accommodation provisions of the ADA and Title VII of the Civil Rights Act of 1964 and other EEO considerations.” You also need to be mindful of state or local laws that might impact your business.
  • You should be mindful of the fact that some people or groups may not currently have access to the vaccine. The program is still rolling out, so you must not discriminate against those awaiting their turn.
  • You can offer vaccine incentives to employees. When you ask to see proof of vaccination, you must stay with the confidentiality rules set out in the Americans with Disabilities Act.
  • If you do offer incentives, they can’t be coercive. The EEOC doesn’t specify a dollar limit on incentives but do try to be aware of the fact that a large incentive could make employees feel unduly obliged to engage in the vaccination program.
  • Employers can actively provide educational information to employees and their families about Covid-19. This includes information about the benefits of getting vaccinated.

There are also a few key facts worth knowing when you define your vaccination policy:  

  • OSHA rules mean that you have to create a safe workplace for all, and Covid-19 counts as a legitimate threat to employee safety.
  • Vaccination is not considered a form of medical screening, and therefore you don’t need to show a clear business requirement, as per the Americans with Disabilities Act (AMA). However, Covid-19 tests do count as a screening. 
  • If you have a mandatory vaccine policy, you must provide an exemption for anyone who can’t have the vaccine for medical reasons or due to a sincerely held religious belief.  

These rules will continue to evolve in the coming months as the vaccine rolls out. Doubtless, there will also be legal challenges that will impact vaccination policy at a state and national level. The challenge for employers is to build a flexible approach that suits all circumstances.  

How to build a fair and flexible vaccination policy at work

Recent figures suggest that around half of U.S. employers are planning to follow the example of Google and Goldman Sachs by bringing in a mandatory vaccine policy.  

But many employers still don’t want to go down the “no jab, no job” route of mandatory vaccinations. Such policies could impact worker morale, plus they raise questions about employer liability. For instance, if someone has a reaction after receiving an employer-mandated vaccine, is that employee entitled to worker’s comp?  

Instead, most companies are following a vaccine policy of Engage, Encourage, Accommodate. Here’s how. 

1. Investigate employee attitudes

The first step is to explore the level of vaccine hesitancy within your team. You can do this with a short pulse survey to determine how many people are willing to get inoculated. If people say no, ask them if they have a valid medical or religious reason for doing so.  

You may find that vaccine hesitancy isn’t a big problem with your team, which makes the rest of your vaccination policy decisions easier. If your survey shows reluctance to get the shots, then you may face an uphill climb.  

2. Educate and inform

Vaccine hesitancy is mostly fueled by misinformation spread on social media. You can help fight this by providing clear, objective information about vaccine safety. You can find quality information on official sites like the CDC website.  

It’s worth bearing in mind that people each have different reasons for being reluctant to accept vaccines. Some groups approach it from a health and wellness perspective, while Black and Latino communities might be deterred by structural inequalities in healthcare. It may help if you host a forum or town hall event where everyone can share their concerns and get evidence-based answers.  

3. Help people get vaccinated

As mentioned above, you may run into trouble if you offer certain incentives for vaccinations. But there’s still a lot you can do to help. 

For instance, you can post details of the vaccination program and help employees to arrange their appointments. You can offer flexible working patterns around appointment times and help organize transport. Later in the year, employers may be able to offer in-office vaccination programs, which will boost uptake.  

4. Keep track of vaccinated workers 

Employers have a right to ask workers if they’ve been vaccinated. It’s also easy to verify, as vaccination clinics will issue a certificate after you get your shots. You should always keep track of who’s inoculated and who is not.  A word of caution, though: you still have to treat employee medical information according to existing rules.

This means that you can’t store health data in general employee files. You also can’t make employment decisions based on this information. If someone claims a medical exemption, be careful about asking follow-up questions. You may inadvertently cause them to reveal sensitive health information, which breaches their right to privacy.  

5. Accommodate non-vaccinated workers where possible

Some workers don’t need the vaccine. If someone is going to continue full-time remote working, you can leave the vaccine decision to them. You might also choose to reassign non-vaccinated employees to a work-from-home role. 

Which brings us to the ultimate issue: can you fire someone for not getting vaccinated?

There have been a few cases of terminations across the country so far, although none of these has been challenged in court. It’s also worth noting that mandatory vaccination policies are nothing new. Health workers generally require an annual flu vaccine, for example. 

But the majority of employers won’t want to go down that road. Before you start thinking about enforcement, think about what you can to Engage, Encourage, and Accommodate. 

Want to know more about the post-pandemic future? Visit our Covid-19 resource center.