With so much of the hope for businesses to return to in-person work hinging on widespread COVID-19 vaccinations, it's not unreasonable that employers expect their workers to get their shots, and get them as quickly as supplies allow.
But employers also need to be careful about how they much pressure they put on employees to get vaccinated. As a threshold matter, employers
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"Ultimately, I think a lot of employers out there are finding that there's a lot of risk associated with a mandatory vaccination program in terms of litigation or legal risks, and you really need to be sure that you have proper procedures in place to weigh all of the different exceptions that exist to a mandatory vaccination program," Diana Bardes, a partner with the law firm Mooney, Green, Saindon, Murphy & Welch, said during a recent online presentation hosted by the International Foundation of Employee Benefit Plans.
Bardes is seeing far more employers exploring strategies to
For instance, the ADA bars employers from offering incentives to participate in wellness programs that are so great that they could be deemed coercive, which can be interpreted as stripping employees of their choice to opt out. Bardes suggests that employers apply those same rules to COVID vaccines. So, for instance, employers might offer a day of paid time off or a $100 gift card for employees who get their shot. But not, say, a car.
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"That's why we've been seeing pretty low-stakes incentives," Bardes said. "We've seen things that are relatively small, but enough to be encouraging but not big enough to take away someone's choice about whether or not vaccine is in their best interest."
Employers who do want to set up a mandatory vaccine program need to be aware of the potential disability exemptions that employees could claim in pursuit of an accommodation. At the point an employee makes such a request, the employer must first determine whether allowing a non-vaccinated worker to remain on the job would pose a "direct threat" to the workplace. If not, then the employer must grant the accommodation. But if the employer determines that there is a threat, then they must next evaluate how they could make an accommodation without imperiling other workers, such as permitting the employee who doesn't want the vaccine to work remotely, or maintaining masking and social-distancing rules in the workplace.
"If there's no direct threat to your workplace, then you don't require a vaccination. If there is a direct threat but a reasonable accommodation is available, then you need to make that accommodation," Bardes said. "If there's a direct threat and no possible accommodation that can be made, only then is it lawful to exclude that employee from the workplace."
Bardes also has a few ideas about how employers can address the challenge of
She cautions employers against inundating workers with a barrage of emails or infographics or other materials that could overwhelm them and turn them off to the vaccine. Instead, she recommends that employers help employees envision how their lives will be different once they get vaccinated — how they will be able to safely gather indoors with family, for instance, or go to a baseball game or concert once venues begin opening up to large crowds but require vaccination documentation or a negative COVID test.
Some employers have also been inviting medical experts to make presentations discussing issues around vaccinations, offering employees the opportunity to ask questions with the hope of clearing up some of the misinformation about the process of developing, testing and distributing the vaccines.
"Providing all that type of factual background has shown to be extremely helpful in getting people more comfortable with getting vaccinated," Bardes said. "It's about educating our workforces."
