After an unprecedented year, there is light at the end of the tunnel as COVID-19 vaccines are being administered across the globe. However, just because we have the vaccine doesn’t mean we are out of the woods yet. The only way for the COVID-19 vaccine to do its job and provide community immunity is for the majority of the population to get vaccinated. Employers have a duty to keep their employees safe, and that includes navigating the murky waters of convincing their staff to get vaccinated.
While some larger employers may be able to sustain location closures, employee quarantines, regular deep cleanings and even liabilities that come with an open workplace that doesn’t require the COVID-19 vaccine, others may not be able to manage financially. Experts agree that the only way to return to work safely is for employers to do everything they can to drive their workforce to get vaccinated.
One way to accomplish this is for employers to ramp up their pandemic communication strategy, focusing on sharing facts and debunking misinformation that employees may be consuming from social media or questionable sources. Employers should also be prepared to handle some level of vaccine distribution, similar to on-site flu-shot clinics that many employers already offer. While some employers may find it best to incentivize the vaccine through a wellness or rewards program, others may choose to mandate the vaccine prior to employees coming back into the office.
However an organization decides to proceed, it is vital to develop a COVID-19 vaccine plan as soon as possible.
In mid-December, the Equal Employment Opportunity Commission clarified the legality of employers mandating the COVID-19 vaccine. In short, employers may require employees to receive the vaccine as long as the organization’s policy is in line with workplace laws and that employers make accommodations as such.
Organizations may have policies that bar employees from posing a health or safety threat to others in the workplace, and thus allowing for the mandate of a vaccine. However, if a person with a disability refuses the vaccine for any reason, the employer needs to determine if this unvaccinated individual poses a health or safety threat and, if so, whether an accommodation can be made for the employee. Such accommodations may include a leave of absence, a flexible work schedule or a permanent work-from-home arrangement.
Title VII of the Civil Rights Act of 1964 protects the religious freedom of employees by requiring employers to accommodate employees’ religious beliefs and practices unless the accommodation would cause an undue hardship on the business. Employers often set aside space for daytime prayer or include floating holidays for use beyond the organization’s regular holiday schedule as a way to accommodate employees’ beliefs.
Regarding vaccine mandates, there is the possibility that an employee may have a religious objection to receiving the vaccine. In this case, an employer must determine if a reasonable accommodation can be made. If an accommodation is not possible, the employer can prevent the employee from physically entering the workplace, but must ensure that no other laws are violated if they wish to separate employment. Employers should also be aware that Title VII allows for employers to request supporting information about a religious objection if the employer has an objective reason for questioning the religious nature or the sincerity of the objection.
If an employer decides to mandate the COVID-19 vaccine for union workers, they should determine if the existing collective bargaining agreement (CBA) allows or prohibits them from implementing new work place rules and policies. If the CBA does not specify, or if the provision is silent, it is advised to work with the respective labor union and legal counsel to modify the contract. If the union objects, this could pose additional issues within the workforce depending on the union membership size and its proximity to and interaction with non-unionized employees.
Under the Coronavirus Aid, Relief, and Economic Security (CARES) Act, most group health plans are required to cover the vaccine at no cost to the employee. This, however, only extends to employees covered by the employer’s group health plan. As a recommended best practice, should an employer institute a mandatory vaccine policy, they should also review financials and budget accordingly to cover the cost for all employees.
The Center for Disease Control and Prevention (CDC) has provided information demonstrating the impact of colleges and universities holding in-person classes on community COVID-19 spread. Communities with large institutions that held classes digitally saw nearly an 18% decrease in the number of COVID-19 cases, whereas areas with large universities that held courses in-person saw a 56% increase. Those higher education institutions that have not already reopened for in-person classes should consider several important issues before making that decision:
What should employers do next? Consider the following:
For more information, or to learn how Baker Tilly Vantagen can help, contact our team.