Covid-19 vaccinations present new challenges for employers

ADVERTORIAL

Employers must outline a clear implementation framework regardless of the type of vaccine policy

By Robert L. Best and Allyson L. Moore

As COVID-19 vaccine availability ramps up, employers may see the vaccine as a path back to “normal” operations. If only all my employees were vaccinated (and all my customers too!) we could get back to work! Nevertheless, employers may wonder whether it’s the company’s role to be involved in encouraging – or even requiring – vaccinations.

With no apologies for the pun, employers are confronted with what may appear to be double-N95-masked guidance from official sources, as there are currently no laws (state or federal) indicating whether employers can or should mandate that employees receive COVID-19 vaccinations.

Although clear and precise “do’s and don’ts” would be helpful, the best we have is guidance from the U.S. Equal Employment Opportunity Commission (EEOC) that focuses on what federal laws an employer should consider when developing a vaccination policy. Nevertheless, the guidance implies that, subject to certain limitations, employers can implement a mandatory vaccination policy for employees.

However, before adopting a mandatory policy, employers should consider whether their business puts its employees or the community at an elevated risk of contracting COVID-19. For employees exposed to an elevated risk of COVID-19, a mandatory employee vaccination policy might make sense. For others, a vaccination policy that encourages – but does not require – vaccination might be a better fit.

MANDATORY VACCINE POLICIES

Employers who have employees exposed to an elevated risk of contracting COVID-19 can mandate vaccination as a condition of returning to work. However, such policies must make accommodations for employees with medical disabilities or sincerely-held religious beliefs. Employers should consult their legal counsel to understand how to approach these accommodations. An employer looking to mandate vaccinations must also carefully balance the need for a uniform and consistent policy with evolving state and local laws, vaccination availability and fluid guidance from the CDC, EEOC and state counterparts.

Other considerations:

• Employers with locations in multiple states must tailor policies to individual state requirements;

• Unionized employers should ensure that requirements they wish to impose are in keeping with applicable collective bargaining agreements; and

• Employers should review their workers’ compensation plans for coverage for adverse reactions to the vaccine.

VOLUNTARY VACCINE POLICIES

For businesses that are not at an elevated risk, employers may prefer to layout a voluntary program. Employers are permitted to encourage certain behaviors from their employees, especially when linked to a related business need. With COVID-19, the business need is readily evident.

The focus of a voluntary policy should be on encouraging employee and customer safety. To help increase participation, employers may consider health or wellness programs that include additional small incentives for getting vaccinated. Moreover, when executives and managers show a personal commitment to the policy by participating themselves, there is usually a positive correlation with employee participation. Employers should consult their legal counsel on arranging such programs while protecting employees’ confidential health information.

EMPLOYERS SHOULD BE PROACTIVE

Employers should be developing plans for vaccine impacts on their businesses. Regardless of the type of vaccination policy selected, employers must outline a clear implementation framework, including how employees can request accommodations. Finally, employers must continue to keep track of and respond to evolving guidance and employee concerns that may require modifications or updates to their policies. ¥

Robert Best is a member at Sulloway & Hollis. His practice focuses on health care, nonprofit, real estate and business clients. As chair ofSulloway’s health care practice group, Bob assists clients with a widevariety of administrative and regulatory matters important to healthcare and business organizations.

Allyson Moore is an associate at Sulloway & Hollis. She represents litigation clients, insurance carriers, health care providers and business clients in a diverse array of matters.