Employer COVID-19 Vaccine Policy - FAQs

May our practice mandate that our employees receive the COVID-19 vaccine when it becomes widely available? 
Yes, on December 16, 2020, the U.S. Equal Employment Opportunity Commission (EEOC) issued guidance saying that U.S. employers may mandate that its employees receive the COVID-19 vaccine.  However, employers must comply with requirements in the Americans with Disabilities Act (ADA) and Title VII of the Civil Rights Act of 1964 (Title VII).

What must we consider if we decide to mandate the COVID-19 vaccine?
Title VII requires an employer to provide a reasonable accommodation for an employee’s sincerely held religious beliefs unless doing so would pose an undue hardship to the employer.  Similarly, the ADA requires an employer to provide a reasonable accommodation for a qualified individual with a disability except when such an accommodation would cause the employer an undue hardship.  Reasonable accommodations in this instance may include the requirement to wear a mask or personal protective equipment or a temporary assignment away from job tasks that pose a higher likelihood of exposure.  An undue hardship is defined as incurring a “significant difficulty or expense” in light of the cost, employer size and resources, the type of operation and the impact of the accommodation.  The question of whether an undue hardship exists should be reviewed with counsel.

Should our practice mandate that its employees receive the COVID-19 vaccine when it becomes widely available?
That is a determination to be made by each individual practice.  Not all employers will want to mandate that its employees receive the vaccination.  Factors that may play into the decision include the number of employees, existing employment policies related to other vaccinations, and workplace culture.

What must we consider if we decide to encourage that our employees receive the COVID-19 vaccine rather than mandate it?
If an employer decides to strongly encourage that its employees receive the vaccine, then it should make clear that the vaccination is voluntary.  Even if strongly encouraging the vaccine, employers should still take ADA and Title VII considerations into account.

May we offer extra benefits or threaten to reduce benefits should employees decline the vaccine?
Employers should be careful when deciding whether and how to incentivize employees to receive the COVID-19 vaccine.  To the extent that you plan to offer incentives for employees to receive the COVID-19 vaccine, you should speak with counsel to determine its impact on the voluntary nature of your vaccination policy.

What do we do if an employee refuses to receive the vaccine?
Regardless of whether your vaccine policy is mandatory or voluntary, you as an employer must ensure that reasonable measures are being taken to prevent the spread of COVID-19 in your workplace.  If an employee refuses to receive the vaccine, you should ensure that practices such as PPE usage, distancing, hand washing, etc. are in place to prevent transmission.  Such prevention and mitigation practices should be well documented.

Can we exclude an employee from the workplace if they refuse to receive the vaccine?
If a determination is made that the direct threat of COVID-19 transmission by an unvaccinated person cannot be reduced acceptably, the employee can be excluded from the workplace. Employers should continue to consider other accommodations, such as allowing the employee to work remotely or granting the employee leave.  Even if leave or remote work or similar accommodations for employees excluded from the worksite are not possible, the EEOC warns that the employer may incur liability if the individual’s employment is terminated. We recommend consulting with counsel before taking such action.

Am I as an employer going to be liable if my employee refuses to receive the vaccine and contracts COVID-19 in the workplace or transmits it to a patient?
Ultimately, the employer has the responsibility of ensuring that it is adhering to the most current laws, regulations, and CDC guidance to prevent and mitigate the spread of COVID-19 in the workplace.  The question of liability is untested in law at the moment.  The best thing you can do is to ensure strict compliance with relevant COVID-19 prevention and mitigation practices and document such practices and compliance to the best extent you can.

*This FAQ document is for information purposes only and not to be construed as legal advice. If you have specific questions or concerns, please seek the advice of counsel.