COVID-19 vaccines are now available, and many employers want to get their workers vaccinated as soon as possible. Making the COVID-19 vaccine mandatory for workers is one way to do this. However, there are several issues to consider before implementing a mandatory vaccine policy.
COVID-19 Vaccine Availability
One of the first issues that employers must consider is whether the COVID-19 vaccine is even available to their workers. If workers cannot obtain the vaccine, whether or not to mandate vaccines becomes a moot question.
The FDA has issued emergency use authorization for three different COVID-19 vaccines.
Currently, vaccine distribution is being handled by the states, and doses are restricted to individuals who meet the state’s criteria for priority vaccination.
Legal Issues Surrounding Mandatory Vaccine Policies
Employers must also consider the legal issues surrounding mandatory vaccine policies. According to the U.S. Equal Employment Opportunity Commission, various equal employment opportunity laws may be relevant. These laws include the ADA and the Rehabilitation Act, GINA and Title VII.
First, administration of the vaccine does not count as a medical examination, but the pre-screening process may. Therefore, employers must comply with ADA regulations. Second, some employees may say that they cannot be vaccinated because of a disability. In this situation, the employer must follow ADA regulations and determine whether an unvaccinated employee would pose a direct threat and whether reasonable accommodations, such as remote work, are possible.
Likewise, employees may say they cannot be vaccinated due to sincerely held religious beliefs. In this situation, employers must comply with Title VII regulations. If no reasonable accommodations are possible, the EEOC says that the employer may be able to exclude the employee from the workplace. However, it is important to consider the situation carefully, and to review all relevant regulations, including state and local laws.
Other Vaccine Approaches
Instead of mandating the COVID-19 vaccine, some employers are trying other approaches. This can include simply encouraging employees to get vaccinated and educating them on the benefits. The CDC has created the Essential Workers COVID-19 Vaccine Toolkit with resources to help employers do this.
Other employers are providing bonuses or other incentives to encourage workers to get the vaccine. However, Bloomberg Law warns that the legality of this approach has been questioned. If the bonuses are interpreted as being enticing or coercive, they could run afoul of anti-discrimination laws.
SHRM adds that cash bonuses could create wage and hour complications, although nonmonetary incentives might avoid this problem.
Despite the potential issues, multiple employers have gone ahead with this strategy.
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