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COVID-19 Vaccinations For Employees: What An Employer Needs To Know

by Karyn H. Rhodes | SHRM-SCP, SPHR on Apr 13, 2021 4:03:00 AM

With the increased access to COVID-19 vaccines, many employers are eager to have their workers receive vaccinations in order to enable normal operations to resume and ensure the safety of the workplace. But can you require an employee to get a vaccine?

Complete Payroll Solutions offers HR consulting services to thousands of companies in all industries, including helping employers navigate the employee relations aspects of the pandemic. With guidance from various federal agencies about mandatory vaccines as well as  pending legislation in some states, we understand how confusing it can be to know the best way to proceed with vaccinations.

To help you understand what’s legal when it comes to requiring your employees to get vaccinated, here we’ll discuss the top 11  questions we’ve been getting from employers:

  • Is mandating employee vaccinations legal?
  • Do I risk violating the EEOC or ADA if I require vaccinations?
  • What if my employees are unionized?
  • Can I ask an employee if they’ve been vaccinated?
  • What do I do if an employee refuses?
  • Should I consider “recommending” vaccination instead?
  • If I don’t mandate vaccines, can I incent workers to take part?
  • Do I have to pay workers for the time they spend getting vaccinated?
  • Do I need to offer my employees time off to get vaccinated?
  • If an employee suffers an adverse reaction, can they file a workers’ compensation claim?
  • What are some tips for a successful vaccination program? 

Top 11 Questions and Answers About Mandatory Vaccinations

There are no federal or state laws currently in effect that prohibit an employer from mandating that employees receive COVID-19 vaccinations as long as you don’t discriminate on the basis of disability or religion. However, there are laws pending in several states that, if passed, could prevent employers from mandating vaccinations and protect those who refuse the vaccine.

For example, in New Hampshire, House Bill 220 would establish a policy of medical freedom with regard to immunizations, meaning any person would have the right to refuse to accept medical intervention and can’t be discriminated against for such refusal.

Before you decide on a mandated vaccination policy, be sure you check to see if it’s consistent with state or local law.

Do I risk violating the EEOC or ADA if I require vaccinations?

The latest Equal Employment Opportunity Commission (EEOC) guidance confirms that the vaccination itself is not a medical examination within the meaning of the Americans with Disabilities Act (ADA). Therefore, the administration of the COVID-19 vaccine is not prohibited or limited by the ADA. That means you can mandate vaccination and be in compliance. Further, you don’t need to demonstrate that the vaccination is job related or consistent with business necessity.

However, it’s important that you don’t exclude an employee from the workplace who indicates they can’t receive a vaccine due to a disability or a sincerely held religious belief. If a safety-based qualification, such as a COVID-19 vaccination requirement, screens out an individual with a disability, you’ll need to show they pose a direct threat or significant risk of harm to others that can’t be reduced by a reasonable accommodation.

What if my employees are unionized?

If your employees belong to a union, you may be able to avoid collective bargaining if you qualify for an exception. However, that is not to say you won’t meet resistance or need to bargain about the issue with the union. You should be prepared to begin negotiations by giving notice of your intent to require vaccinations as soon as possible. Even if you don’t have bargaining obligations, it’s important to get buy-in from the union to make the program successful.

Can I ask an employee if they’ve been vaccinated?

You can ask employees about their vaccination status. While the ADA limits an employer’s ability to inquire about an employee’s disability, guidance from the EEOC indicates that asking for proof of a vaccine is not likely to elicit information about a disability and is not a disability-related inquiry​.

However, it’s important that you don’t ask any follow-up questions that could be considered a disability-related inquiry. In addition, be sure documentation that confirms vaccination doesn’t reveal other health information. 

What do I do if an employee refuses vaccination?

If you opt to mandate vaccination, you risk getting push back from some workers. In fact, according to a SHRM survey, 28% of respondents said they’d be willing to lose their jobs if their employer requires the COVID-19 vaccine. Their reasons could be everything from fear or a political objection to religious or medical concerns.

To help minimize refusals, start by educating your workforce about why you believe you feel mandating vaccination is the right approach for your company. If you worry that a large portion of your workforce may refuse, consider encouraging vaccination instead, which we’ll discuss next.  

Should I consider “recommending” vaccinations instead?

While some organizations with congregate settings such as a hospital, medical facility, nursing home, or prison may mandate a vaccination policy, most employers will recommend that employees get a vaccine since they will want to balance their desire for a safe workplace with the potential impact on employee morale​. Recommending that employees get vaccinated would allow you to express your desire for employees to get vaccinated for the greater good of the company and community while respecting their concerns.

The decision really comes down to your organization’s culture. Some factors to consider include:

  • whether you service or provide care for others who may not be vaccinated
  • the risk of harm to others if employees don’t get vaccinated
  • disruption in the workplace if you mandate 
  • how well you are able to manage the spread of COVID-19 during the pandemic with other controls and processes in place

If I don’t mandate vaccines, can I incent workers to take part?

Like other wellness activities, you may incentivize employees to get vaccinated. Incentives such as nominal cash incentives (such as $25), gift cards, or paid time off may be used.   

Do I have to pay workers for the time they spend getting vaccinated?

If you recommend rather than require vaccination, time spent getting the vaccine does not likely need to be compensated, unless vaccination takes place on site during working time. However, if vaccination is mandatory, even if it occurs during non-working time, under FLSA, it may be compensable if vaccination is considered “integral and indispensable” to your “principal activity.”

Due to the FLSA and state wage and hour concerns, you may want to consider a policy that you will pay 4 hours per vaccine and apply it standardly to all employees. Keep in mind that starting April 1, 2021, this time can now be reported, and you can receive a tax credit for the time it takes to get vaccinated or time the employee needs to recover from a vaccine under the new stimulus program. 

Do I need to offer my employees time off to get vaccinated?

You can grant employees time off to incentivize them, for example, 4 hours to get vaccinated as we just discussed. They can also use sick time or PTO to attend vaccine appointments. Since leave to get the vaccine and reactions to the vaccine are now covered under Emergency Paid Sick Leave under FFCRA, that can also be used. In addition, emergency FMLA leave is available.

If an employee suffers an adverse reaction, can they file a workers’ compensation claim?

Yes, an employee may file a claim. If an employer decides to mandate the vaccine, you’ll want to consider the potential workers’ compensation or other liability exposure for injuries or illnesses resulting from adverse reactions or side effects from vaccinations.

What are some tips for a successful vaccination program?

Whether you choose to mandate or recommend vaccines, you’ll want to have a policy outlining:

  • whether vaccination is mandated or encouraged
  • application  to all employees or just some, for example, you may have a clinical staff that would be mandatory and a corporate staff that would be strongly encouraged
  • any phases or timelines for different groups of employees based on state recommendations
  • eligibility for paid or unpaid time off if they feel ill after receiving a vaccine (keeping in mind that employers can apply for the tax credit under the stimulus)
  • handling potential exceptions

There will likely be some hesitation to getting vaccinated by some members of your workforce.

To encourage vaccination, focus on the facts by pointing to campaigns from public agencies like your local department of health. Over time, peer pressure may encourage engagement and support. Lastly, if you can identify any potential barriers to getting the vaccine, determine how easily you could remove them.  

Best Practices for COVID-19 Vaccinations

While vaccination can keep your workforce healthy, reduce absenteeism, and improve productivity, it’s important to carefully weigh the benefits and risks of mandating vaccinations.

If you need assistance with understanding your options, Complete Payroll Solutions’ outsourced HR consulting services can help. Take the next step by learning about our options on our dedicated HR page.

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