Thinking About a Mandatory Vaccine Policy? Here’s What You Need to Consider

Miles & Stockbridge P.C.

As an employer, you might be thinking about implementing a mandatory vaccine policy for your workforce. There are many issues to consider when developing a mandatory vaccine policy, and it is hard to keep up with fast-developing federal, state, and local requirements. Before putting a policy into place, what are some of most pressing issues that you should be thinking about?

State Law Considerations

It is important to consider the state(s) where you have employees. Several states, including Florida and Texas, passed laws that prohibit vaccine mandates. Several of these laws have been challenged, with varying levels of success. On the flip side, some state courts have upheld mandatory vaccine policies. This is a quickly changing area of the law, so you should be sure to check the laws where your employees work before proceeding.

Industry-Specific Considerations

Some businesses are under special mandates from federal, state, or local government. On September 24, 2021, the Safer Federal Workforce Task Force released guidance, as explained here, that requires federal contractor employees to be fully vaccinated by the later of December 8, 2021, or the first day of performance of any new covered contract, option, or extended or renewed contract. Notably, the vaccine requirement also includes teleworking contractor employees who directly or indirectly support covered contracts. As with all vaccine mandates, the guidance allows exemptions for qualifying medical or religious reasons.

Additionally, some states and cities require vaccinations or mandatory testing for health care workers. For instance, Baltimore City requires that all health care workers become either fully vaccinated or receive weekly testing by October 18, 2021. Therefore, before making any decisions, determine whether your industry has specific rules.

Creating a Mandatory Vaccine Policy

If there is not clear guidance for your company, be sure to consider:

Will the mandate apply to all employees?
Vaccine mandates cannot be applied in a discriminatory manner – i.e., the mandate must be applied equally to all employees regardless of any protected trait (race, religious, gender, etc.). However, you may treat employees differently depending on where they work or their level of interaction with others. For example, customer-facing staff could be required to be vaccinated, but not back office staff. Similarly, a legitimate policy could be that only employees who come to work in-person need to be vaccinated, but those whose positions are permanently remote do not need to be. However, each policy must be carefully considered and you are encouraged to consult with counsel and consider employee relations impacts when making distinctions based on role.

What is your deadline for compliance?
Consider the timelines for the available vaccines to determine when you want all employees to be fully vaccinated. According to the CDC, people are considered fully vaccinated two weeks after their second shot in a two-dose series, like the Pfizer or Moderna vaccines, or two weeks after a single-shot vaccine, like Johnson & Johnson’s Janssen COVID-19 Vaccine. Therefore, build in time to ensure employees are able to comply with any mandate.

What is the process to provide ADA and religious exemption requests?
There are two widely-discussed reasons for receiving an exemption from mandatory vaccine policies – exemptions for employees with disabilities and for employees with sincerely held religious beliefs. Employers should develop and publish policies for employees who are seeking an accommodation to a mandatory vaccine policy and must have a process for evaluating accommodation requests. If an employee meets the criteria for an exemption, you should consider whether it would be undue hardship to accommodate the employee’s request. Each scenario must be analyzed given the employee’s role and the impact on the employer. Additionally, you should consider whether your state would require further exemptions for additional reasons, such as pregnancy.

Do you want to allow an alternative to vaccination – such as mandatory testing on a weekly or other basis?
If so, you must also consider how often to provide the testing, what type of test to use, when to test, and who pays for the test. In some states, there are laws that require employers to cover all business related expenses. Therefore, in those states, you could not require the employee who refuses vaccination to cover the cost of their own testing. Also, you should consider if the employees will be paid for the time it takes to test. Likely, this would be considered working time that is compensable.

Will you provide leave for employees to get vaccinated and/or who have symptoms after vaccine?
Under the Biden mandate, as explained here, employers must provide paid time off for employees to become vaccinated. You should consider whether they would provide leave for employees to receive the vaccine and/or leave if employees experience symptoms after they receive the vaccine. If you already provide paid time off, you should consider whether you want to provide additional leave to incentivize the vaccinations rather than requiring employees to exhaust previously provided paid time off.

What proof of vaccination will you require and how will you protect the privacy of that information?
Remember, vaccine records are medical records. While you may request documentation of vaccination status, you should control access to, and limit the use of, vaccination information.

Are you unionized?
If your workplace is unionized, mandatory vaccination may be the subject of collective bargaining agreements and you should refer to those agreements.

Will your mandate extend to visitors to the workplace – clients, vendors, etc.?
If you are requiring all employees to be vaccinated, you should consider whether you will also require all visitors who come to the workplace to be vaccinated. If you do choose to require all visitors to be vaccinated, consider how you will alert potential visitors to the workplace.

Are you prepared to terminate those who refuse but don’t have an exemption?
Finally, if you put a policy in place, you must be prepared to follow it to the extent an employee does not qualify for a legitimate exemption. As previously stated, policies need to be enforced in a non-discriminatory manner. If you set a strict policy but then only enforce it as to certain employees, you expose yourself to risk.

Clearly, vaccination policies are complex and require much thought. Prior to making any policies, consult with counsel to carefully consider the unique issues of your business.

Opinions and conclusions in this post are solely those of the author unless otherwise indicated. The information contained in this blog is general in nature and is not offered and cannot be considered as legal advice for any particular situation. The author has provided the links referenced above for information purposes only and by doing so, does not adopt or incorporate the contents. Any federal tax advice provided in this communication is not intended or written by the author to be used, and cannot be used by the recipient, for the purpose of avoiding penalties which may be imposed on the recipient by the IRS. Please contact the author if you would like to receive written advice in a format which complies with IRS rules and may be relied upon to avoid penalties.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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