A Long Shot
While employers may encourage or incentivize vaccinations, they are unlikely to make them mandatory.
As the COVID-19 vaccine rolls out to more people as they become eligible, many are wondering if the shot could become a requirement in the workplace, but the bigger question is: Should it?
By law, employers are permitted to mandate a vaccine, and it’s common in professions where people put themselves at risk daily. Health care workers are typically required to receive the flu vaccine annually, for instance. However, vaccine policies are not common in most private companies.
“Employers do have the option to mandate vaccines, but they also have to adhere to disability, pregnancy, religion and accommodation legal requirements. Some of those requirements may indeed represent significant exceptions,” says Michele Siekerka, president and CEO of the New Jersey Business and Industry Association (NJBIA).
Specifically, employers need to ensure compliance with several laws, says Susan Hodges, Esq., chair of employment and labor at Parker McCay. “If an employer institutes a mandatory vaccine policy, they must comply with the Americans with Disabilities Act (ADA), Title VII of the Civil Rights Act of 1964 (Title VII) and other workplace laws. This means that employees may be exempt from receiving the vaccine if they have a covered disability under the ADA that prevents them from taking the vaccine,” she says.
“There are many good reasons for an employer to require the vaccine, but there are likely as many reasons for employees to refuse to get the vaccine. … Employers should request proper medical documentation from employees if the employee claims they should be exempt from the policy. Employees may also be exempt from the vaccine requirement under Title VII, which covers religious and other exemptions,” Hodges adds.
“You have to pay attention to the laws and be sure you have clear policies in place,” says Frank Plum, president of Workplace HCM. “The decision is up to each individual business owner, and I would recommend more than anything that they speak with their business attorney and human resources manager.”
Mandating opens employers up to exposure. “If an employer decides to require the vaccine, they must have a written policy that explains the requirement to be vaccinated, and is compliant with the law. Without a proper policy, an employer adds another level of risk if it attempts to terminate an employee who did not receive the vaccine,” Hodges continues.
Business owners have to consider what they are prepared to go up against for those who do refuse the vaccine. “It depends on what exception the employee plans to exercise in their refusal and if they can be validated or proven—and also how much effort they want to put into contesting these refusals,” Siekerka says. “Additionally, the National Labor Relations Act protects employees who come together to protest mandatory vaccinations. Vaccinations would have to be a subject of bargaining agreements if an employer has a union workforce.”
However, on the other side of the coin is the liability of not mandating. If an employee or customer contracts COVID-19 traced to your business, it could be framed as an Occupational Safety and Health Act (OSHA) hazard.
“Employers have an obligation to ensure that their employees have a healthy and safe work environment, since the failure to do so could lead to a complaint or lawsuit against the company. The Equal Employment Opportunity Commission (EEOC) guidance is a must-read for employers who are considering requiring COVID-19 vaccinations,” says Hodges.
Considering all of these risks, employers may choose to encourage or incentivize employees to receive the vaccine. Nationwide, companies have announced compensation either monetarily or with paid time off for employees who get vaccinated.
Patrick Ryan, president and CEO of First Bank, says he has sought guidance on the matter from both attorneys and an HR professional. The company does not plan on mandating the vaccine, but is encouraging participation with other incentives.
"We are covering any lost wages for time out of the office to get the vaccine and we are offering an additional PTO day to anyone who gets vaccinated," he says. "We know there are pros and cons and risks to different approaches, but we felt offering the incentive was the best path forward."
Plum, who is close to being fully vaccinated himself, made his employees aware, but is not mandating it. “I let them know I felt safe and encouraged them to get it when their time gets called. It doesn’t mean they have to,” he says.
Whether making it mandatory or not, Plum advises businesses not to ease up on the COVID-19 safety protocols they’ve been following. “Gov. Phil Murphy’s original executive order (No. 107), in which employers must still provide work-from-home opportunities, as well as follow social distancing, masking, cleaning and health checks, has not been lifted. Having the vaccine does not mean you no longer have to adhere to all state and federal guidelines.”
Siekerka recommends businesses obtain certifications to remain compliant with OSHA. “With OSHA recently issuing stronger workplace safety guidance that urges participation in workplace prevention programs, NJBIA does recommend that New Jersey business owners take part in Workplace Infectious Disease certification training programs,” she says. “NJBIA offers a rigorous Healthy Business Certification program, teaming with a federally certified provider called Peak Performance. Those employers who have been certified tell us in no uncertain terms how important it is for them to provide a workplace where their employees, their customers and their vendors can have peace of mind.”
Displaying proof of these certifications adds to the peace of mind of customers that this establishment is maintaining optimum protections, she adds.
There is surely excitement in the business world regarding the return to some semblance of normalcy with the vaccine, but most may find the best course of action to wait out the controversy and any potential legal ramifications.
“Employers need to weigh the balance of the ROI of having people back in the office versus their comfort level as vaccinations increase and workplace protections are maintained,” Siekerka concludes. “Some companies transitioned to remote work well and didn’t skip a beat. Others are counting the days where they can get everyone back in the office or on site. Each individual employer is going to have to make their own decisions on the right balance in the end.”
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Published (and copyrighted) in South Jersey Biz, Volume 11, Issue 2 (February 2021).
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