As the coronavirus surges during a fourth wave, companies are scrambling to keep their workplaces safe. With news that the Pfizer vaccine has now obtained full Food and Drug Administration (FDA) approval, more businesses are likely to make vaccinations mandatory, creating safer spaces for their employees and customers. Smaller businesses, without risk and legal departments, have been especially challenged. They’re fending for themselves to interpret national and state guidelines, and feeling pressure to follow the protocols set by corporations like Google and Facebook. Each business should evaluate what works best for them.
Factors to consider before instituting a mask mandate in your workplace:
- Is the company in an area of high community transmission?
- Does the workforce have significant in-person interaction with the public or other employees?
- Do current state guidelines ask that masks be worn indoors for the vaccinated and unvaccinated?
If you answered yes to any of these questions, then mask mandates or strongly incentivizing mask use should be considered for your organization.
Company concerns around vaccination
The decision to mandate vaccines is a policy that should be vetted carefully. Having a policy, even if it does not specifically mandate vaccines, helps employers set expectations, allowing everyone to plan.
A vaccine mandate may allow for collaboration at the office, prevent an uptick in COVID-19-related sick leave, and make employees feel safer returning to the office. On the other hand, some companies may find employees looking for other work because they are uncomfortable with the mandate. There is additional legal risk because a mandate will trigger a legally required evaluation for individuals requesting exceptions to the vaccination for medical or religious reasons. Medical exceptions will require the employer to engage in the interactive process with the employee to see if a reasonable accommodation is available under the Americans with Disabilities Act (ADA). Likewise faith-based exceptions must be evaluated under Title VII of the Civil Rights Act. These risks can be minimized if vaccines are simple “encouraged” or associated with incentives.
FAQs around vaccination mandates
Can a private business legally mandate vaccines?
At the federal level, the Equal Employment Opportunity Commission (EEOC) and the Department of Justice (DOJ) support employers mandating vaccines. The DOJ specifically stated employers were not prohibited from mandating vaccines because they were authorized under Emergency Use Authorization (EUA). While not legally binding, this support offers insight into how either agency would treat a complaint regarding a vaccine mandate. It is vital that employers who implement a vaccine policy do so consistently in an anti-discriminatory manner without disparately impacting any particular group.
Since the FDA has now fully approved the Pfizer-BioNTech vaccine, employers can breathe a little easier in that at least one basis for challenging such policies, their EUA status, has been removed. Furthermore, the full approval status will likely help more employers feel comfortable in taking a definitive stance and will likely have the effect of making more employees comfortable with taking the vaccine. Employers should take a neutral stance on which vaccine their employees decide to obtain.
Some states have implemented legislation regarding employer vaccine mandates. Montana enacted legislation curtailing a private employer from mandating vaccines, while other states, like New Jersey, have enacted or are considering legislation requiring employers, especially in industries like healthcare and hospitality, to mandate vaccination or institute regular COVID-19 screen testing.
If an employee cannot receive the vaccine, what are my legal obligations as an employer?
An employer mandating vaccines may need to engage in what’s known as the interactive process under the ADA. Employers with 15 or more employees are covered by the ADA. It’s possible that an individual has a medical reason for not taking the vaccine, and the employer would need to provide a reasonable accommodation, like personal protective equipment (PPE), telework, or a waiver. If these accommodations cause an undue hardship to the employer, then it’s possible the employer won’t need to provide them, but an employment lawyer should be consulted. Businesses with fewer than 15 employees may still have similar requirements under state or local laws.
Similarly, if an individual has a bona fide religious belief against taking the vaccine, they may need an accommodation under Title VII, which also has a 15-employee threshold. As with the ADA, even if the federal law does not apply to a small business, most state laws have a lower employee threshold.
It is equally important that employers take steps to protect employees who are unable to take the vaccine, due to a medical condition or religious exception, from harassment or a hostile work environment.
In addition to the ADA and Title VII, what other legal concerns should a small business consider?
When obtaining vaccine information, make sure to keep the information confidential and on a need-to-know basis. Privacy employment laws protect employee information, and disclosure could expose the company to liability. When an employer requires proof of vaccination, they must ensure that they are requesting it from all employees consistently, and that they don’t receive unrelated medical information, which could end up triggering an improper inquiry under the ADA or Genetic Information Nondiscrimination Act.
Employers should designate a few individuals to receive this information who have additional training for medical accommodations and religious exceptions. These designated individuals should also have access to legal counsel.
Mandating vaccinations will also trigger considerations under the National Labor Relations Act (NLRA) for unionized workforces as it may be considered a mandatory subject of bargaining. It is also possible that a nonunionized workforce voicing concerns or boycotting vaccination in a concerted way could be protected activity under the NLRA. Should this occur in your workplace, then connect with a trusted HR expert or employment lawyer.
What are my options if I don’t mandate vaccines for everyone?
Employers should provide a safe workplace, continuing with cleaning, masking, and distancing protocols. Many companies are requiring unvaccinated employees to take screening tests regularly.
The Families First Coronavirus Response Act (FFCRA) and states provide paid time off for individuals who receive a test due to exposure or for the time spent obtaining a vaccine. However, regarding screen testing, it is possible that this testing time will be considered paid time in most jurisdictions, which could trigger overtime and other pay considerations.
Employers should be prepared to communicate with employees about why they have instituted this policy, as employees may be resistant to screening. As with other COVID-19 testing and vaccine status this information will still need to remain confidential.
With the situation still changing daily, employers should be prepared to act quickly to implement or update any COVID-19 workplace policies. Just as important is keeping employees continuously informed. Be proactive, open to feedback, and mindful of being consistent and keeping employee information confidential.
Vanessa Matsis-McCready is the associate general counsel and director of human resources for Engage, a human resources firm and professional employer organization.