The COVID-19 Vaccine Quandary Part 2: To Mandate or Not to Mandate?

Posted in: COVID-19, PSA Partnership

With several approved vaccines in distribution around the country, employers are anxiously trying to do their due diligence and create frameworks for a safe return to in-person environments. As a result of many questions surrounding the COVID-19 vaccine and whether to mandate it to return to work, PSA recently partnered with experts in the medical and legal fields to host a webinar and provide authoritative information as we move forward in a re-shaped workplace.  

This is the second installment in a two-part blog series, divided into a Q&A portion regarding the science surrounding the vaccine (addressed in our previous blog) and the legal implications of mandating vaccines (addressed in this blog). Below are some of the top questions and concerns that Russel Berger, Principal and Department Chair at Offit Kurman addressed during his portion of the webinar. We hope that discussing various questions and legal implications will help you and your organization make the best decision whether mandating COVID-19 vaccine to return to work is right for your business. 

Q: Can I mandate COVID-19 vaccination before employees can return to the physical work location?  

A: Yes. The U.S. Equal Employment Opportunity Commission (EEOC) has guidance around this, which was published in December of 2020. Essentially, the decision to mandate vaccination must be job-related, consistent with business necessity, or as a result of a direct threat to health. 

Q: It’s lawful, but SHOULD I mandate the COVID-19 vaccine 

A: If you choose to mandate vaccination in order to return to your physical worksite, be sure to consider the timeline involved and set a reasonable date by with the vaccine would be required. People fall into different categories of vaccine eligibility and may have issues obtaining their vaccine once eligible due to the high demand.  

Q: If I do mandate vaccination, how do I handle non-compliance?  

A: There are some people who aren’t going to get vaccinated no matter what. When it comes to non-compliance, the consequences must be the same for everyone. You cannot make exceptions for high performers or anything of that nature. One possible consequence you can enforce is simply not allowing non-vaccinated employees to come into the physical office and have them remain virtual. To some who enjoy remote working, however, this could be more of a reward than a punishment.  

Q: What level of proof will you require?  

A: It’s ok to ask for proof of vaccination according to EEOC since it’s not a disability-related inquiry under the ADA. Be specific about what proof you’re requesting and warn employees not to provide medical information, so you don’t receive information you should not. Also consider that mandating vaccinations and proof thereof will cause an increase in volume of employees seeking accommodations under the ADA. This could become an added administrative burden for your Human Resources department. 

Q: How will employees and customers respond to mandating COVID-19 vaccine 

A: Consider the public relations impact of mandating vaccination. If you predict that a large portion of your employee population will react negatively, you must decide if this is a fight worth having. If there are other, feasible options that allow work to get done at the desired capacity and quality, such as remaining virtual, you may prefer to pursue those paths of less resistance. 

Q: What exceptions must be made to a mandatory vaccination policy? 

A: The ADA and Title VII laws require employers to make reasonable accommodations for employees who cannot receive the vaccine due to disabilities or bona fide religious beliefs. If someone is qualified as protected by either of these statutes, you, as an employer, will have to engage and create accommodations. 

Q: How do I mandate vaccination if I go that route? 

A: Create a legally compliant written policy and distribute it in advance to employees. It must address topics including payment for the vaccine, time off for vaccination appointments, and instructions on how to obtain a vaccine, along with penalties for refusal to be vaccinated. Be sure to spell out the process for requesting an accommodation for those employees who may be eligible. 

Q: What can I do, short of mandating it, to encourage vaccination? 

A: You may wish to incentivize your employees to get the COVID-19 vaccine. Some employers have given paid time off to get vaccinated, provided cash bonuses, paid for the vaccine, and provided gift cards to encourage vaccination. 

These are great ideas, but don’t forget that the potential for discrimination still exists with incentive programs. People who can’t be vaccinated due to disability must not be left out or treated differently, as you would be precluding them from receiving a benefit because of their disability. If you decide to incentivize, come up with an accommodation those with disabilities preventing them from vaccination could do instead to earn the incentive. 

Outside of incentivizing employees, employers can engage in campaigns promoting vaccination similar to what we have seen from elected officials. If you go this route, there are no rewards; however, you may be able to increase awareness and willingness to be vaccinated through your efforts. 

In terms of handling vaccinated and non-vaccinated employees, you could create different cohorts based on vaccination status and have vaccinated employees come in together on certain days and unvaccinated people come in together on other days. 

In Closing 

There are many legal implications and considerations to mull over before making a decision to mandate getting a COVID-19 vaccine. No matter what you do, you’ll have to be careful of discrimination against people with disabilities or religious accommodations. 

We hope this information provides clarity around the issue of mandating vaccination for your employee population. As always, PSA is dedicated to providing insights from experts in the community. Please feel free to leverage our COVID-19 Business Resources for relevant updates and educational materials regarding the pandemic.