With life in the U.S. starting to inch back to normal, many people are wondering… can an employer require a COVID vaccine?
Coronavirus case counts and hospitalizations are thankfully going down in most parts of the country. In addition, the number of people who are fully vaccinated increases by the day.
There’s still the big question of can an employer require a COVID vaccine. It’s a complicated answer and a delicate situation that most employers will soon have to tackle.
In this article, we’ll analyze the current situation and explain what you can do as a business owner regarding your employees and vaccines.
Make sure to be up-to-date with your county and state’s legal guidelines, as they are constantly changing.
Returning to normal: vaccines and masks
Everyone is eager to get back to life as they knew it before the pandemic began. But, some obvious obstacles still stand in the way.
One of those obstacles was removed earlier in the spring when every person 16 and older were made eligible for a COVID-19 vaccine. More roadblocks were removed when Pfizer’s vaccine was approved for children ages 12 to 15, and another will be removed if and when vaccines are available for the entire population.
In early May, the Centers for Disease Control and Prevention brought the topic of a return to normalcy front and center when they issued new guidance that said fully vaccinated individuals can go without wearing a mask both indoors and outdoors in most situations.
The combination of these multiple barriers being removed provides a light at the end of the tunnel for a return to office-based work. It’s not as simple as calling everyone back to the office and resuming former operations, though.
Can an employer require a COVID vaccine?
There’s no quick or simple answer to the question of “can an employer require a COVID vaccine?”
The longer, in-depth answer is much more complicated.
The U.S. Equal Employment Opportunity Commission (EEOC) released guidance recently that says employers can mandate employees to have a COVID-19 vaccine as long as the policy meets certain requirements:
- Failure to be vaccinated would be a direct threat to other employees in the workplace because the virus would be easily transmissible in the workplace environment
- Failure to be vaccinated would pose a similar threat to customers or the general public
- The policies provide exemptions for people who can’t be vaccinated due to a disability or “sincerely-held religious beliefs”
In many cases where a workplace is indoors in relatively tight quarters, non-vaccinated employees could pose a risk to other employees, customers, and/or the general public.
Of course, this justification could vary by industry.
- Health-care, retail, restaurants, and other office-based workplaces could make the case that employees are in close quarters and would pose a risk to others if they weren’t vaccinated.
- Other industries where employees work individually, outdoors, or remotely may have a tougher time justifying a vaccine mandate.
Either way, the EEOC’s guidance provides a basis for all employers to require a COVID-19 vaccine, as long as they abide by federal employment law.
You can also offer incentives or inducements for employees to get vaccinated, as long as they’re not coercive and they are completely voluntary.
Can an employer require a COVID vaccine? New legislations
Currently, almost every state is proposing or considering legislation regarding COVID-19 vaccine requirements when it comes to business owners and their current and prospective employees.
The legislations under consideration differs greatly from state to state.
Pending legislation in Alabama, for example, would prohibit employers from taking any adverse action against current or prospective workers based on whether they have a COVID-19 vaccine. Employers, therefore, wouldn’t be able to refuse to promote, reduce pay, harass and/or fire employees if they refused to get a COVID-19 vaccine.
Other states such as Delaware have no such pending legislation. Employers in that state, then, would theoretically have more freedom to require COVID-19 vaccines for employees based on the EEOC federal guidance.
Another example is Santa Clara County, in California, which has a health order that mandates that employers inquire and determine the vaccination status of all employees.
The national law firm Husch Blackwell has put together a state-by-state guide on pending legislation pertaining to employers mandating vaccinations. It’s a good place to start your research.
If one of my employees doesn’t want to get vaccinated, what should I do?
As most business owners know, what you are legally allowed to do and what you should do are often two different things. If one of your employees doesn’t want to get a COVID-19 vaccine, you should handle the situation delicately.
Because this is a scenario that many employers will likely face—and because the COVID-19 vaccine can be quite polarizing—you should get a plan in place now, so you are prepared for if and when the situation arises.
Any time you are considering implementing a new employee policy, you need to ensure you are abiding by all legal requirements. In addition, you need to apply the rules equally to all employees.
What to do
It is better to encourage your employees to get vaccinated, instead of requiring it. But if you decide to require employees to have a COVID-19 vaccine—and your state allows this—make sure that you explain to all employees the exceptions to the rule and how someone can apply for an exemption.
Then, if one of your employees says they don’t want to get vaccinated and doesn’t meet one of those exemptions, you should have a conversation with them.
Sympathize with your employees’ feelings on the matter. Understand that there are varying opinions on the matter, and that’s OK.
Don’t lecture them on why they should get vaccinated. Don’t use statistics and research to try to prove a point.
Instead, tell them that you completely understand their point of view. Then, tell them that, as a business owner, your obligation is to protect the well-being of all employees, customers, and the public at large. And to do this, you have decided to require a COVID vaccine for all employees.
If you can, see if an accommodation can be made for employees who don’t want to get a COVID vaccine. Again, though, be prepared to offer this exemption to any employee who requests it.
If no accommodation can be made, tell the employees that if they still choose not to be vaccinated, you will, unfortunately, have to take action.
What that action will be is up to you.
The consequences, though, should play into your reasoning for requiring vaccines in the first place. In other words, cutting an employee’s pay for not getting vaccinated doesn’t help you protect the well-being of other employees. Terminating their employment—or moving them into another role that doesn’t report to the office—does, however.
If you approach your employees with compassion, understanding, and kindness when rolling out a potentially controversial policy like this, your message is more likely to be received well.
Consult with an employment lawyer so they can help you make a plan that adheres to your localities laws.
When can I start asking all my employees to return safely to work?
We’ve answered the question “Can an employer require a COVID vaccine?” But you probably want to know about how to ask your employees about returning to the office.
When it’s safe to ask employees to return to work may be a personal decision. First, of course, you’ll have to make sure that your state and local jurisdiction has loosened restrictions to allow your business to operate at full capacity.
Once that is allowed, it’s up to you to ease back into full-time, in-office work for all employees.
It would be advisable to implement this return to work slowly and progressively over time. This will allow your employees to make arrangements for child care (if necessary) and to get back into the process of reporting to an office.
It’ll also be important to engender confidence in your employees that you are doing everything you can to keep them safe. To this end, communicate and share your policy regarding COVID-19 vaccinations. Beyond this, though, you should take some logistical steps in the office.
- If you can, space out desks more than they were before
- Hire a professional cleaning company to sanitize the office more often than before
- Provide disinfectant wipes and hand sanitizer to all employees to use at their stations.
You could even create a rotating schedule where employees alternate when they are in the office and when they work from home—to limit the capacity at your workplace.
No matter what you do, communicate your plan to all your employees with plenty of notice. Then, take feedback from employees about their concerns and if they have any ideas.
You could even do this through a company-wide videoconference. It’s an effective way to get everybody back on the same page.
A safe return to the office
With the pandemic seemingly easing in many locations, people are asking, “can an employer require a COVID vaccine?” The answer to that may depend on your location, as different states are taking different approaches.
This creates a potentially sticky situation for employers who are likely to deal with some employees who choose not to get vaccinated. As a business owner, the important thing is to
- think out a comprehensive and empathetic policy
- communicate that policy to your employees
- sympathize with all those who may be affected
At Camino Financial, we are always looking to live up to our motto of “No Business Left Behind” by providing you insights just like these. To receive more business management tips and ways to strengthen your business, subscribe to the Camino Financial Newsletter.