|DISCLAIMER: While we are sharing insights from legal experts on this topic, Workable is not a legal authority and this is not to be taken as formal legal advice. For clarity on legal processes, please consult a lawyer.
First, let’s look at social opinion. A CNBC survey released on Dec. 18, 2020, found that 57% of Americans feel that vaccinations should be made mandatory in the workplace. Look at the opposite, and you can read that 43% of Americans don’t think it should be required.
Another survey, released by Sykes, found a similar result:
In that same survey from Sykes, half (50.7%) of respondents who plan to get vaccinated said they know someone who doesn’t plan to get the vaccine.
Since the workplace can be a natural extension of society, this can pose a challenge for employers who need to make a decision on a COVID-19 vaccine policy. So how can employers go about it in the right way – whether it’s best practices, legal compliance, or both?
COVID-19 vaccine policy in the workplace
We reached out for insights in the business and legal communities to find out, and we’re sharing seven high-level takeaways.
1. There are important legal considerations
First and foremost: you, of course, want to be compliant when considering a vaccine policy. When it comes to workplace requirements, there will be legal implications – and those get more and more convoluted when you’re dealing with the COVID-19 vaccine and other treatments that can be viewed by some as intrusive.
These legal implications fall largely under two areas, according to Philadelphia employment lawyer Edith Pearce of Pearce Law Firm:
“There are exceptions for certain employees who should receive additional accommodations because of their sincere religious beliefs, or due to health conditions or disabilities that could prevent them from safely receiving a vaccination.”
David Reischer, Attorney & CEO of New York-based LegalAdvice.com, says that, while there is no law that specifically considers a mandatory COVID-19 vaccination, an employee can exercise rights on the grounds of disability:
“The Equal Employment Opportunity Commission (EEOC) has historically advised for the flu vaccination that an employee may be exempt from a mandatory vaccine if the employee has a disability covered by the Americans with Disabilities Act (ADA) that prevents them from taking the vaccine.”
Edith also points to medical conditions, saying if an employee has a medical reason to object, as recognized by the ADA, they have the right to do so.
“For example, recently Britain’s medicines regulator advised patients who have a history of a significant allergic reaction to vaccines, medicines, or food, and those who have been advised to carry an adrenaline autoinjector (a.k.a. an EpiPen) should not receive the Pfizer COVID-19 vaccine.”
If this is the case, the employer has legal rights and obligations of its own, says Edith:
“The employer may request disability-related documentation that substantiates that the individual should not receive the vaccination because of a health condition. The employer would likely again need to provide reasonable accommodation such as wearing a mask as effective alternative means of infection control.”
David adds, however, that employers can take business impact into consideration when looking at such exceptions: “An exemption is permitted as a reasonable accommodation under the ADA unless there is undue hardship, which the ADA defines as significant difficulty or expense for the employer.”
According to Edith, if an employee objects to a vaccination based on religious grounds, they have that right as well.
“If an employee has a sincerely held religious belief, practice, or observance against being vaccinated they are protected under Title VII of the Civil Rights Act, as an employer has a duty to reasonably accommodate the employee unless this creates an undue hardship on the employer’s business,” she says.
“That language is important and one should take note of ‘sincerely held religious belief.’ What this means is that employers cannot force those specific religious employees to get the vaccine, but the employee would still have to adhere to other accommodations that would likely include requiring the employee to wear a mask if they have a religious objection to being vaccinated.”
Edith points out the important distinction between personal beliefs and religious beliefs:
“In past cases involving an employee’s objection to the seasonal flu vaccine, courts have held that views based on mere personal beliefs regarding the health effects of the flu vaccine and the desire to avoid the vaccine does not qualify as a ‘sincere held religious belief.’”
David also pointed out the religious accommodation provision in the Civil Rights Act, noting that the impact on business health can be a consideration:
“In such instances, an employee may be exempted if taking the vaccination would violate a sincerely held religious beliefs, practices, or observances. In such instances, an employer must provide reasonable accommodation unless it would pose an undue hardship, which under Title VII is ‘more than de minimis cost’ to the employer’s business.”
2. A safe workplace is a major motivator
While employers have strong legal footing in requiring vaccinations for employees, what’s also top of mind for many employers is the health of their employees and ensuring a safe and healthy working environment.
Test Prep Insight CEO John Ross is viscerally mindful of this in his online education company.
“Once the vaccine becomes widely distributed, I will require that all 10 of our employees get the vaccine, unless they have a substantiated medical reason not to get it,” he says. “As a business owner, I have the obligation to provide a working environment that is safe and where employees feel comfortable, and having a team that has all been immunized against the virus will help me satisfy that obligation.”
The decision to require vaccines can depend on industry, sector, and job position, according to health expert and CEO Vinay Amin of Eu Natural, a health supplement manufacturer and seller in Nevada.
“I believe the COVID-19 vaccine policy of an SMB will depend on the industry, and the type of employment they choose: i.e. in an office, WFH, or a combination.”
However, founder Daniel Carter of ZippyElectrics, an online resource for electric transportation, is equally adamant about the responsibility of the employer in a COVID-19 vaccine policy:
“It is every employer’s task to ensure that their employees and the working environment of their employees are as safe as possible. Therefore, I believe that requiring the vaccine and providing it for your employees is your task as an employer.”
Employees’ rights to a safe, healthy workspace
Daniel points to the obligation of employers as well according to law:
“The Occupational Safety and Health Administration (OSHA) ensures that the federal law of providing a safe workspace for employees is followed. If you require your employees to be present at the office/establishment, then, as an employer, you are responsible for their health.”
Daniel is right about OSHA, says Edith, who has been practicing law for more than 25 years:
“When it comes to the COVID-19 vaccination – and vaccines in general – employers can generally require their employees to become vaccinated to promote a safe work environment.“
Edith continues: “Under [OSHA] and various state laws, employers have a duty to provide each of their employees with ‘a place of employment which are free from recognized hazards that are causing or likely to cause death or serious physical harm’ to its employees. These laws allow employers to put health and safety policies into action, such as vaccinations from a virus such as COVID-19, but they need to be applied equally to all employees and uniformly enforced for business necessity.”
Holly Helstrom, an Adjunct Instructor at Columbia University in NYC, also states that an employer has the legal right to introduce a COVID-19 vaccine policy if they’re a private sector at-will employer, again due to workplace health considerations:
“This is a product of how US labor law and the Constitution are written. Employers can and have fired employees based on lifestyle choices related to their health, including if they smoke cigarettes or drink alcohol,” says Holly, who specializes in First Amendment rights for employees. “Refusal to get a COVID vaccine if your employer is requiring one could get you fired and your employer would be within their legal rights to do so. “
Andrew Taylor, Director of Net Lawman, an online resource for legal advice in the United Kingdom, says the same.
“Employees can be fired over their lifestyle choices and the COVID-19 vaccine is no different. There are some laws put in place about 10 years ago, protecting employers in this instance and regulations specifically regarding COVID-19, in favor of the vaccine, are quickly clarifying any thoughts.”
3. Worker health equals business health
Business continuity is a factor for many employers in deciding whether or not to have employees be vaccinated, including for Matt Rostosky of Cash Offer Kentucky, a real estate investment firm in Louisville, Kentucky.
“In our case where we go out into the field to conduct real estate sales, it’s important to let our clients feel confident that we have been vaccinated so that our transactions can be much safer at least when the COVID-19 virus hasn’t been eradicated yet.”
Rex Frieberger, CEO of tech and lifestyle publication Gadget Review, admits that he won’t be outright requiring all employees to vaccinate because of what he sees as potential legal implications, but still wants to incentivize it. However, he will require vaccinations for some functions in his business:
“Because we’re focused on travel, I will definitely require employees doing lots of travel to get it. The risk is too great otherwise.”
Jake Hill, the CEO of Austin-based personal finance publication DebtHammer, works with vulnerable populations, and consequently, he’s adamant that all employees be vaccinated if they can safely do so.
“This is something I feel very strongly about and I will not argue with employees about it,” says Jake. “While we do a lot of our work remotely (especially now), in-office we counsel some of the most vulnerable members of society. The elderly and the working poor are extremely susceptible to communicable disease and there is literally no reason not to get the vaccine when working with high-risk individuals.”
John at Test Prep Insight also sees his overall business benefiting from a company-wide vaccination policy.
“Our team is more productive in an in-person working environment, so the moment we are allowed to return to in-person activity, I plan to act on it. However, I have to make sure I have taken all precautions to protect my employees when doing so, and I think requiring the vaccine is the best course of action.”
4. Employers are willing to pay out of pocket
In the United States, the US Centers for Disease Control and Prevention (CDC) states on its website that all COVID-19 vaccines purchased with taxpayer money will be provided free of charge – but notes that there may be additional administrative costs levied by vaccine providers. If that’s a factor in an employee’s decision to get a vaccine, some employers told us that they plan to pay out of pocket for this.
Rex at Gadget Review is actually sweetening the deal for those who get the shot.
“We’ll be covering the cost and giving employees who get it a one-time bonus as well, so I think that will encourage most of our crew to get it.”
Jake at DebtHammer also wants to remove any potential obstacles to getting it, whether financial or otherwise.
“I’m hoping the vaccine will be covered by our health plan, but if not I’ll cover it out of pocket. I don’t want anyone to have a reason not to get it, and I’ll expect our employees to step up and do what needs to be done.”
WikiLawn President Dan Bailey plans to extend the same offer beyond employees in his online lawn care resource center’s COVID-19 vaccine policy.
“I don’t know when we’ll get access to it, but we intend to cover the cost for every employee as well as their immediate family. The faster we can get everyone vaccinated, the sooner they’ll be able to live their lives without fear of the virus.”
5. Employees should decide how to get the vaccine
While the motivation and sense of responsibility is strong for many employers, some like Daniel at ZippyElectrics are deferring to the experts when actually administering the vaccine – because of logistical considerations.
“Due to varying schedules, the most ideal way to execute this program is to contact hospitals and clinics that administer the vaccine and point your employees in their direction. This way your employees still have the freedom to choose when and where to get the vaccine. Then you can cover the vaccine’s costs before requiring your employees to return to work.”
There’s another added benefit to empowering employees to dictate the logistics of actually getting vaccinated, according to Spokane, Washington-based Miles Beckler, who works with entrepreneurs in digital marketing.
“The onus is on the employee to get the vaccine themselves – after all, they will be able to access it in a much more sterile, safe environment than an office space.”
6. Not everyone feels the same way
While many employers feel it’s necessary or at least crucial for every employee to be vaccinated, there are some detractors who are uneasy or outright opposed to implementing a formal COVID-19 vaccine policy in the workplace:
Founder and CEO Deven Patel of domain marketplace Alter.com is one who wants to leave that decision to employees, taking into consideration the rapid rollout of the vaccine:
“I would not require my employees to take the COVID-19 vaccine. They should be free to choose on their own,” says Deven, who operates out of New York City.
“Historically, vaccines typically took about 10-12 years to be developed properly. Requiring employees to take the COVID vaccine that was rapidly developed in under a year would be like forcing people to use beta software. It should be the employee’s choice.”
L.A.-based MintResume’s senior career advisor Joe Wilson’s own apprehensions come from a legal and moral standpoint. He would rather defer to existing precautions as recommended by authorities:
“I would question how viable it is to ask employees to have a vaccine. Would it be a case of vaccination or lose your job? I think that could bring a whole host of issues. I certainly don’t want that fight. Precautions such as wearing a mask and keeping a distance are possible and realistic but I’m not sure of the moral implications of insisting that employees have a vaccination.”
7. Clear communication is key
The consensus among employers who do plan to request vaccinations among employees is that the communication must be absolutely clear, to preempt any potential misinterpretation or confusion.
Miles in Spokane points out the importance of full transparency in communicating such a policy to employees. “Given the emotionally charged nature of COVID-19, there can be no gray areas in how the workplace operates post-vaccine. If the office environment is only accessible to those who have had the vaccine, make that distinction clear well in advance.”
Miles adds that a single stream of communication is key.
“To do this in the most effective way, send out a single, definitive communication that answers the questions your employees may have.”
Daniel at ZippyElectrics points to the many different ways that Human Resources can communicate this policy to employees:
“As with many offices, group chats, newsletters, and the like are available to spread new regulations. You can make use of these to tell your employees about how the vaccine situation will be executed.”
Daniel recommends including all details, especially answering “why” such a policy is being implemented, to reassure employees about the motivation of the business:
“It is also important to inform your employees that just because vaccines are being rolled out and are available, does not mean we have to neglect health and safety protocols that have been put in place. Until such time that the vaccine is provided for everyone, it’s better to be safe than sorry.”
Miles recommends including as many details as possible in that single stream of communication so as to remove any confusion:
“The document should clarify whether vaccinations will be administered on-site, whether they’re simply strongly advised, and whether the vaccine is required to return to the workplace.”
Be kind and empathetic – it’s a sensitive topic
Matt of Cash Offer Kentucky recommends that rather than bluntly requiring employees to be vaccinated – which, based on the above-cited survey data, can potentially create a toxic working environment – the language can be revised, and made more approachable. It is, after all, a sensitive area and should be treated as such.
“Encouraged to take the vaccine is a more appropriate term.”
David at LegalAdvice.com says this language exists even in a legal sense: “[With some exceptions], the EEOC does not prohibit employers from mandating vaccines. It strongly emphasizes employers to consider encouraging employees to take the vaccine rather than requiring employees to take the vaccine.”
Holly – who also advises clients at Logos Consulting Group in NYC – points to the importance of clear communication on “why” an employer is taking a specific stance on a COVID-19 vaccination requirement:
“When navigating complex questions such as ‘Is it morally right to do, or not do, X?’, having clarity on one’s values, whether from the employer or employee perspective, can make the decision easier,” says Holly. “For example, if individual liberty is more important to you than job security, your decision when navigating this question as an employee will be much easier.”
COVID-19 vaccine policies at work
For the most part, yes, employers do have the legal right to implement a COVID-19 vaccine policy for their employees – with several notable exceptions. You should do your homework on that from a legal standpoint before administering such a policy – including consulting a lawyer as needed. Workable is first and foremost a recruitment solutions service, not a formal legal authority.
That aside, ensure your employees are on board with such a policy by being clear about your reasons for doing so – be it for business health, workplace health, a combination of both, or otherwise. There’s a clear hesitation by a large swath of the population on the health effects of such a vaccine and its overall impact on the pandemic, and that can’t be ignored. The social and political tensions are also quite tangible, and will be for some time.
The least you can do for your employees is to introduce a COVID-19 vaccine policy in the workplace in a thoughtful, empathetic and clear way. That applies not only for your business health, but also for your employee engagement during a time where reassurance and support can go a long way during tough times.