As 2020 drew to a close, we at Affinity HR, a Big “I" Hires partner, started fielding questions from clients about whether they could require employees to obtain a COVID-19 vaccine as a condition of employment. These questions were sparked by the initial vaccination roll-out for front line health care workers and nursing home residents and the alarming spike of COVID-19 infections across the country during the holiday season. 

States across the U.S. are in varying stages of vaccination. While the question of whether employers can require a COVID-19 vaccine isn't imminent for most businesses, now is the time to think about what your strategy will be.

Can Employers Require the COVID-19 Vaccine?

The answer to this question is essentially yes. In December 2020, the U.S. Equal Employment Opportunity Commission issued guidance stating that a COVID-19 vaccine, administered by an employer or by a third-party administrator on behalf of an employer is not a medical examination and is permissible.

While the EEOC has deemed such a requirement permissible, it states that employers should have a well-articulated business reason for requiring the vaccine, such as the need to protect the health of employees or clients, travel, work with vulnerable populations, or work in close quarters with others.

The EEOC 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 work from home, isolate from other workers, or significantly adjust work duties to provide protections from the general employee population.

Under the Americans with Disabilities Act (ADA) and Title VII 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. 

The EEOC also cautioned employers who plan on requiring a vaccination to be careful not to violate employees' rights when asking the health screening questions that will likely be necessary to ensure there are no underlying medical reasons for which the employee should not receive a vaccine. Because of this, the EEOC advises that employers should consider making vaccinations voluntary or should have a third party administer all aspects of the vaccination process. 

Along the same lines, if the employer plans to require proof of vaccination, the employer should be careful not to pursue the reasons why an employee was unable to obtain the vaccine unless the employer can argue they had a reasonable belief the employee's refusal to provide their own protected medical information concerning their inability to receive the vaccine poses a significant risk of substantial harm to the health or safety of the individual or others. 

To be safe, if an employer elects to require a COVID-19 vaccine, it must:

• Exercise care in administering the vaccine and consider outsourcing the entire process to a third party.
• Refrain from asking any unnecessary health screening questions.
• Keep any medical information received from employees confidential.
• Be prepared to engage with any employees who request accommodation or seek an exemption from the vaccination due to medical or religious reasons.

Affinity HR strongly encourages employers to lead by example in their approach to taking the vaccine and, thereafter, to continue to maintain social distancing measures and use of personal protective equipment.

In the case of employees requiring reasonable accommodation, employers should consider and review each case carefully before taking an adverse action against an employee for failing to obtain a vaccine. As an employer, do not substitute your wants and opinions for those of the employee's doctor who is making the determination whether the employee should receive the vaccine.

And for those who cannot take the vaccine, it is important not to discriminate, retaliate, harass, or otherwise disadvantage the employee in terms of job duties and pay because of their inability to get inoculated. Employers must keep all information confidential and not communicate who has and who has not been vaccinated.

Finally, if, as an employer, you are considering requiring a vaccine, you may want to take stock of how your employees responded to many of the precautionary measures you may have required over the past few months, including following social distancing protocols, consistent and appropriate wearing of masks and other protective equipment, and overall compliance with COVID-19 safety protocols. If maintaining a safe workforce was challenging, you can anticipate the issues related to mandating, communicating, educating, tracking and accommodating employees during this process will be equally—if not more—challenging.

Just Because Employers Can Require the COVID-19 Vaccine Doesn't Mean They Should

Affinity HR's advice for employers is to take steps toward encouraging vaccines before they decide to mandate them.

Employees may be reluctant to get a vaccine—either because of legitimate health concerns or religious beliefs, or because of personal beliefs, privacy issues or political concerns. While mandating the vaccine may be ultimately appropriate, Affinity HR advises employers to encourage vaccines as a first step.

If taking this approach, employers could:

• Encourage vaccinations as part of a larger workplace wellness campaign, supported by goals, challenges and positive incentives.
• Provide educational campaigns for employees to address their concerns, including inviting a medical professional to address employees' confidential health concerns.
• Give employees time off with pay to obtain the vaccine and, if necessary, to convalesce from the inoculation.
• Lead by example by taking the first vaccine and celebrating the first step toward beating the pandemic.

Although the end of the pandemic seems within sight, the country is still battling high levels of infections. Even those who get vaccines will still need to wear a mask 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 is president of Affinity HR Group, Inc. Affinity HR is the endorsed HR partner of Big “I" Hires, the Independent Insurance Agents of Virginia, Big I New York, and Big I New Jersey. Reach out to Affinity HR Group via email or 877-660-6400 with your HR needs.

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