By Jennifer Gimler Brady & Jennifer Penberthy Buckley
Guest Columnists
A question we increasingly hear from clients is whether employers can require that employees get the COVID-19 vaccine. And no wonder. The pandemic may be far from over, but pandemic fatigue has long since set in, and everyone wants to get back to normal. Could vaccines be the key to returning to business as usual?
Generally, employers can legally mandate vaccination as a term and condition of employment. Such policies may be prohibited in some instances, however, by contract or by federal and state employment laws. In addition, caution is warranted when dealing with a new vaccine approved by the U.S. Food & Drug Administration pursuant to an Emergency Use Authorization (such as the COVID-19 vaccines), given the relatively short track record. If your organization is considering a mandatory vaccine policy, be sure to consider these limits.
Agreements
Contractual commitments with employees may be found in an individual employment agreement or a collectively bargained agreement (CBA) that applies to a unionized segment of your workforce. If some or all your workforce is represented by a union, check the terms of the CBA to determine whether bargaining over the proposed policy is needed.
Legally Mandated Accommodations
Federal and state employment laws require that employers, absent undue hardship, provide reasonable accommodations to employees with disabilities or sincerely held religious beliefs that conflict with receiving the vaccine. Any mandatory vaccine policy should notify employees that such accommodations are available and provide clear instructions for requesting one.
All requests for accommodation should be funneled to human resources or some other central expert to ensure consistent decision-making among multiple requests and to keep employees’ medical or religious information confidential. Unless the basis for the request is obvious or already known to the employer, employers generally can request supporting documentation. An interactive dialogue with each employee is necessary to determine which potential accommodations might be appropriate.
Often waiver of the policy is the solution, but other arrangements might be suitable to accommodate the employee while still satisfying the rationale behind the policy. The key is to brainstorm with the employee and collaborate on potential solutions. Once this analysis is complete, the employer must decide whether any of the potential accommodations should be ruled out due to undue hardship.
Because each step of the reasonable accommodation analysis involves sensitive factual and legal issues, employers should not hesitate to consult with legal counsel before denying accommodation requests, particularly in difficult or borderline cases.
If your organization chooses to implement a mandatory or even voluntary vaccine program, observing the following planning measures will reduce the risks associated with new mandatory policies.
First, identify the business necessity for requiring the vaccine for each position that is required to comply. Second, vet the policy and related communications with key experts and constituents, such as HR, legal, marketing, and labor. Third, establish straightforward accommodation procedures that include two levels of review by people well-versed in the ADA and Title VII. Fourth, determine how confidential employee information, including accommodation requests and proof of vaccination, will be handled to ensure confidentiality. Finally, continue mask-wearing and other protective measures, even for employees who have been vaccinated, consistent with local, state, and federal guidance.
If a mandatory vaccine policy is not right for your organization, you can still encourage employees to get vaccinated. Conveying reliable information about the vaccines (from the FDA or the Centers for Disease Control and Prevention, for example) may increase voluntary vaccination. Employers also can help by monitoring local vaccine availability and sharing that information with employees. Small incentives, such as water bottles or other company swag, can be offered to employees who voluntarily get the vaccine. Paid time off for receiving the vaccine is an incentive that also makes getting the vaccine more convenient for employees. Like other employee medical information, any proof of vaccination required to receive the incentive must be kept confidential and not maintained in the employee’s personnel file.
Jennifer Gimler Brady is a partner and general counsel at Potter Anderson & Corroon, a Wilmington-based law firm. Jennifer Penberthy Buckley is a firm associate.
