TRANSFORMING TEAMS

Mandating the vaccine

Aa close, we started fielding uestions from clients about whether they could re uire employees to obtain a C I - vaccine as a condition of employment. hese uestions were spar ed by the initial rollout of vaccinations for front-line health care wor ers and nursing home residents and the alarming spi e of C I infections across the country during the holiday season. While vaccination of the general population is still a few months away, many of our clients have been deemed essential businesses and therefore will li ely have access to the vaccine ahead of the general population. So while the uestion of whether to re uire a C I vaccine isn t imminent for most businesses, now is the time to thin about what your strategy will be.

Can employers require employees to get vaccinated?

he answer to this uestion essentially is yes. In ecember, the EE C issued guidance stating that a C I vaccine, administered by an employer or a third-party administrator on behalf of an employer is not a medical examination and is permissible. While the EE C deemed such a re uirement permissible, they stated that employers should have a well-articulated business reason for re uiring the vaccine, such as the need to protect the health of employees or clients, or the need to travel, wor with vulnerable populations, or wor in close uarters with others. he EE C also cautioned that employers must provide “reasonable accommodation” to employees who either are unable to receive a vaccine due to a medical condition or due to a “sincerely held religious belief.” A reasonable accommodation may include allowing an employee to wor from home, isolate from other wor ers, or signifi-

Q. Can I as an employer require my employees to get a vaccine for COVID?

A. Yes, the EEOC recently advised that employers are within their rights to require a COVID vaccine as a condition of employment. Employers must, however, provide reasonable accommodation for those who cannot take the vaccine due either to a medical condition or to a sincerely held religious belief as provided under the Americans with Disabilities Act and Title VII of the Civil Rights Act.

At this point, our recommendation to employers is to start with a positive, voluntary program before wading into the challenges posed by mandating the vaccine. Of course, we encourage employers to seek our advice or the advice of legal counsel before moving forward with a policy. cantly ad ust wor duties to provide protections from the general employee population. Under the Americans with isabilities Act A A and itle II of the Civil Rights Act, employers must allow reasonable accommodations such as these as long as providing the accommodation doesn t cause “undue hardship” for the employer. he EE C also cautioned employers who plan on re uiring a vaccination to be careful not to violate employees rights when as ing the sort of health screening uestions that will li ely be necessary in order to ensure there are no underlying medical reasons for which the employee should not receive a vaccine. Because of this, the EE C advises that employers should consider ma ing vaccinations voluntary or should have a third party administer all aspects of the vaccination process.

Along the same lines, if the employer plans to re uire proof of vaccination, they need to ta e care not to pursue the reasons why an employee was unable to obtain the vaccine. hat s unless they can argue that the employer had a reasonable belief that the employee s refusal to provide their own protected medical information concerning their inability to receive the vaccine poses a significant ris of substantial harm to the health or safety of the individual or others. In other words, be ready for a lawsuit. o be safe, if an employer elects to re uire a C I vaccine, they must Exercise care in administering the vaccine and consider outsourcing the entire process to a third party Refrain from as ing any unnecessary health screening uestions eep confidential any medical information received from employees, and Be prepared to engage with any employees who re uest accommodation or see an exemption from the vaccination due to medical or religious reasons.

We strongly encourage employers to also lead by exam-

ple in their approach to ta ing the vaccine and, thereafter, to continue to maintain safe social distancing and use of PPE. In the case of employees re uiring reasonable accommodation, you should consider and review each case carefully before ta ing an adverse action against an employee for failing to obtain a vaccine. It is also important not to substitute your wants and opinions for those of the employee s doctor who is ma ing the determination on whether the employee should receive the vaccine. And for those who cannot ta e the vaccine, it is important not to discriminate, retaliate, harass or otherwise disadvantage the employee in terms of ob duties and pay as a result of their inability to get inoculated. Also be careful to eep all information confi dential and not communicate who has and has not been vaccinated.

Finally, if you are considering re uiring a vaccine, you may want to ta e stoc of how your employees responded to many of the precautionary measures you may have re uired over the past few months, including following social distancing protocols, consistent and appropriate wearing of mas s, and overall compliance with the safety protocols put in place since the outbrea of C I . If maintaining a safe wor force was challenging, you can anticipate the issues related to mandating, communicating, educating, trac ing and accommodating employees during this process will be e ually if not more challenging.

Just because they can require a vaccine, doesn’t mean they should.

ur advice for employers is to ta e steps toward encouraging vaccines before they decide to mandate them. For a number of reasons, employees may be reluctant to get a vaccine either because of legitimate health concerns or religious beliefs, or because of personal beliefs, privacy issues, and or political concerns. While mandating the vaccine may be ultimately appropriate, we advise employers to encourage vaccines as a fi rst step.

If ta ing this approach, employers could Encourage vaccinations as part of a larger wor place wellness campaign, supported by goals and challenges and positive incentives Provide educational campaigns for employees to address concerns, including perhaps inviting a medical professional to address employees confi dential health concerns Give employees time off with pay to obtain the vaccine and, if necessary, to convalesce from the inoculation, and Lead by example by ta ing the fi rst vaccine and celebrating the fi rst step toward beating the pandemic.

We’re not out of the woods yet.

Finally, although the end of the pandemic seems within sight, we are still battling the highest level of infections at any point since the pandemic started. he virus is increasingly contagious if not virulent and even those who get vaccines will still need to mas and socially distance until more about the disease can be learned. For the time being, stay vigilant in protecting your employees, your clients, and your communities and spend some time now imagining how you and your employees will celebrate when this wretched disease is behind us

Claudia St. John SP R, S RM-SCP, President A nity R Group contact a nityhrgroup.com