The Delta variant is sweeping the country. COVID-19 illness rates are increasing. Many large employers such as Google, Facebook, Morgan Stanley, Tyson Foods, and The Washington Post have made vaccination mandatory for their employees. The federal government has decreed that vaccines are mandatory for some executive agency employees. The Secretary of Defense has indicated that he will seek a vaccine mandate for active duty military members by mid-September. In this climate, many employers may be wondering if they, too, should make COVID-19 vaccinations mandatory for their workforce. Here are some practical and legal considerations as you evaluate this course of action:
- The Equal Employment Opportunity Commission has stated that employers can
- Ask employees if they are vaccinated
- Require proof of vaccine status, as long as documents related to vaccine status are maintained as confidential medical records
- Mandate vaccines as a condition of employment
- However, the EEOC has also cautioned that an employer rule mandating vaccination must provide a mechanism for employees to seek an accommodation based on medical reasons or religious beliefs which prevent vaccination
- The Department of Justice has issued a formal opinion that the Emergency Use Authorization status of the current vaccines does not give employees a legal basis to refuse to comply with an employer’s vaccine mandate
- Two federal circuit courts have upheld mandatory vaccination rules for an employer and a public university, and the U.S. Supreme Court declined a request to intervene to issue an emergency injunction in one of the cases, allowing the public university to move forward with its vaccine mandate.
- Although many bills are pending across the country, so far only two state legislatures have actually passed laws limiting or prohibiting private employer vaccine mandates. These states are Oregon and Montana.
While it appears that the federal courts would likely uphold properly crafted employer rules mandating vaccines, subject to medical and religious accommodations, the practical issues when deciding whether to implement such a rule that should be considered include the following:
- Does your company have the financial resources to defend a lawsuit if a vaccine mandate is imposed and then challenged by an employee in court?
- What types of jobs would the mandate apply to and why? What about your employees’ job duties support a mandatory vaccination policy?
- What are the COVID-19 case counts and positivity rates in your area?
- Are others in your industry mandating vaccination?
- Are your clients mandating vaccination, and does a mandatory vaccination policy impact your company’s ability to serve its clients?
- What is the history of COVID-19 spread in your workplace before the vaccines became widely available? Were alternative measures effective in minimizing the spread, and are those measures still effective in light of new variants of the virus?
- What percentage of your workforce is presently unvaccinated?
- If your company mandates the vaccine, will those employees quit? If they do, what impact does that have on your company’s ability to carry on your business?
- Does your company have the administrative staff necessary to process, evaluate and document the potentially large number of requests for accommodation that you will likely receive?
One way to obtain information that could help inform your decision making process is to conduct an anonymous survey of your workforce, asking employees to tell you if they are vaccinated, and whether they would get vaccinated if your company made it mandatory (subject to religious and medical accommodations), or if they would look for work elsewhere.
Although the practical considerations may ultimately drive your decision, if your company decides that a vaccine mandate is appropriate, be sure to consult your employment counsel so that a legally defensible written policy can be developed, with the appropriate communication tools and evaluation metrics for any requests for accommodation based on religion or medical condition, and to ensure that any wage and hour issues relating to time spent obtaining a vaccination are properly addressed.