With the roll out of the COVID-19 vaccine across the U.S., many citizens and business owners are beginning to see the light at the end of this lengthy pandemic tunnel. However, the COVID-19 vaccine also poses a number of difficult questions for employers and employees alike. In this article, we aim to highlight some of these scenarios and shed light into the various options available to employers when exploring what works best for their workforce.
EEOC Reasonable Accommodation Considerations
The Equal Employment Opportunity Commission (EEOC) recently updated their COVID-19 guidance and seems to indicate that employers may be able to require their workforce to get vaccinated, subject to certain limitations. The EEOC advised that employers may have a duty to reasonably accommodate employees who refuse or are otherwise unable to get the vaccine due to their disability/medical condition or sincerely held religious belief.
If an employee declines the vaccine due to their disability or religious beliefs, the employer must then determine whether it can provide that employee a reasonable accommodation (absent undue hardship) to mitigate the safety risk posed to other employees at the workplace. The employer is encouraged to engage with these employees; EEOC advises employers and employees to “engage in a flexible, interactive process to identify workplace accommodation options that do not constitute an undue hardship (significant difficulty or expense). This process should include determining whether it is necessary to obtain supporting documentation about the employee’s disability and considering the possible options for accommodation given the nature of the workforce and the employee’s position.” Possible reasonable accommodations may include requiring the employee to wear personal protective equipment (PPE) including face masks at all times at the worksite, reassigning the employee, or implementing a teleworking arrangement if feasible. Be sure your managers and supervisors know how to recognize an employee’s accommodation request and communicate these requests with your designated MMC Human Resources representative.
However, in some situations the employer may be unable to provide a workable reasonable accommodation to the unvaccinated employee. In those circumstances, the employer must be able to show that the unvaccinated employee would pose a “direct threat to due to a ‘significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.’” The EEOC states that the direct-threat analysis requires the employer to conduct an “individualized assessment” based on four factors: (1) duration of the risk; (2) nature and severity of the potential harm; (3) likelihood that potential harm will occur; and (4) imminence of potential harm. If the employer determines the unvaccinated employee poses a direct risk of exposing other employees to COVID-19, and there is no feasible reasonable accommodation to allow the unvaccinated employee to work and reduce the risk of exposure, then the employer may consider excluding that employee from the worksite. As you can imagine, this is a very high standard for the employer to meet and the employer must fully consider all available alternatives before choosing to exclude the unvaccinated employee. The EEOC states that employers must determine if the employee is able to telework or otherwise take leave under any state or federal law, or pursuant to the employer’s own policies.
Requiring vs. Encouraging Employees to Get Vaccinated
In light of the above, many employers have asked whether they should be mandating their workforce to get vaccinated. Obviously, this is a complex decision for any employer and must be carefully examined before implementing a specific policy. This recent article by national employment law firm Fisher Phillips advised that employers should consider “encouraging rather than mandating vaccinations due to potential related risks.” By encouraging employees to get vaccinated, employers may be able to avoid the difficult and complex individualized direct-threat analysis and interactive process to determine a reasonable accommodation described above. For those employees who nevertheless choose not to get vaccinated, employers still have a duty to provide a safe workplace for employees, customers, and vendors – that means those unvaccinated employees should still adhere to CDC guidelines to avoid possible virus exposure.
COVID-19 Vaccine Education and Employee Incentives
There are many ways employers can encourage their employees to get the COVID-19 vaccine. First and foremost, employers should engage in an information campaign with their employees in order to educate them on the benefits of the vaccine, and hopefully dispel any concerns the employees may have. Providing literature to your employees about the vaccine’s safety and effectiveness and communicating with them about their concerns is one low-cost, high-reward method of getting the word out to encourage employees to get vaccinated.
Employers may also want to consider giving all employees paid time off (PTO) to get vaccinated. Employers should keep in mind that they must provide all employees the same increments of PTO to avoid any potential discrimination issues. Fisher Phillips cautions employers who choose this incentive that their employees can choose to use this increment of PTO however they desire, and employers should not require proof of inoculation or otherwise require employees to get vaccinated.
Employers may also choose to reward their employees with a small item as an incentive to get the vaccine. Examples include a water bottle, reasonably priced jacket/sweatshirt, or small token of appreciation (i.e., a nominal gift card). Employers should be advised that even those employees who are unable to get the vaccine due to a disability or religious reason should be entitled to receive the small reward item as well.
We understand that there are many confusing and complex options for employers to consider, so please consult with the MMC HR Services team to determine the best COVID-19 vaccine approach for your workplace.
 See above.
 See above.