If you are considering implementing a mandatory vaccine policy, you will need to think through several issues. Here is a short summary:
What do you mean by “mandatory?”
Before announcing that a policy is “mandatory,” decide what you mean by that. Will those who refuse be terminated? Will they be suspended? Or will they just face a requirement that they get tested on a regular basis?
Must I accommodate an employee’s refusal?
If your business is covered by Title VII or the ADA, you will need to evaluate whether you must accommodate those employees whose medical conditions or religious beliefs do not permit them to get vaccinated. The starting point for medical accommodations are the conditions that the FDA lists as contraindications for receiving vaccinations. But if an employee claims that some other condition justifies an accommodation, you will need to give that consideration as well.
Once the employee provides proof of a disability, you’ll need to consider whether they pose a direct threat to themself or others by remaining unvaccinated, and then decide what kind of accommodation is appropriate. Is it enough for them to be masked while working? Will you require them to undergo regular COVID testing?
Religious accommodation requests can be tricky. Few religions oppose vaccination. But the EEOC says that religion should be given a broad definition and that an employee’s beliefs do not need to line up with the canons of a specific religion. According to the EEOC, religion includes “moral or ethical beliefs as to what is right and wrong which are sincerely held with the strength of traditional religious views.”
Thus, the focus of religious accommodation questions should ordinarily not be on whether the belief is sincerely held, but whether the requested accommodation poses a hardship to the employer.
Do I have to pay for testing or vaccinations?
If an employer requires an employee to take time off work to go get vaccinated or tested, the employer may need to pay the employee for that time. And if the employee will end up having to pay the cost of a test that is required by the employer, the employer may also need to pay for the cost of that test. Likewise, time spent traveling to a site to get vaccinated at the employer’s direction may be compensable.
What questions can I ask?
An employer is permitted to ask whether an employee has been vaccinated. If the employee answers “no, “ the best practice is to not ask “why not,” as EEOC believes that this question might force the employee to reveal the existence of a disability that he or she would prefer not to disclose. Instead, focus on what the employment consequences of remaining vaccinated will be, and allow the employee to seek a reasonable accommodation if one is needed.
Should I seek legal counsel?
There are many nuances that affect how such policies should be designed and executed. Even if well-intentioned, these policies can create legal risks when poorly designed. Before implementing a mandatory vaccination policy, it is a good idea to consult with legal counsel.
Source: Kevin Johnson, Johnson Jackson, PLLC