Vaccine Mandates in the Workplace: 4 Key Considerations for Employers
Article

Vaccine Mandates in the Workplace: 4 Key Considerations for Employers

by Marina Brening
October 26, 2021

As the pandemic continues to evolve, so do workplace safety requirements. Since the U.S. Equal Employment Opportunity Commission (EEOC) recently updated its guidance to allow for mandatory workplace COVID-19 policies, many companies are jumping on board voluntarily, and those companies with 100 or more employees are required to jump, under President Biden’s new order.

Whether your business will require a vaccine mandate or not, here are four top considerations as you determine your path forward.

  1. Think about your main business operations to determine the necessity of a mandated vaccination policy.

    1. Are primary job functions conducted in an in-person indoor location? Are your employees customer-facing or in close contact with independent contractors? These questions will help identify those employees most at risk for exposure, as in-person operations increase the risk of spreading COVID-19. According to OSHA, environments at a higher risk for exposure to or spread of COVID-19 include those with prolonged, close contact with other workers or the public, or in closed spaces without adequate ventilation. To help keep employees safe and avoid a potential drop in production upon an outbreak, employers will want to implement infection control practices and engineering controls, including adequate ventilation.
    2. Maintain workplace safety procedures regardless of the policy. Following the emergence of the COVID-19 Delta variant, the Centers for Disease Control (CDC) recommends ALL individuals wear a mask indoors, whether vaccinated or not. Check local health agencies to get the latest mandated workplace protocols for COVID-19 prevention in your area.
  2. Even under a mandated vaccination policy, Americans with Disabilities Act (ADA) regulations still apply, and employees may be eligible for an accommodation given a medical disability or a sincerely held religious belief. Upon such requests, remember the following:

    1. A medical condition must be deemed severe, leaving the individual disabled. To be eligible for accommodation, this disability must “prohibit” (display an inability, not a preference) the employee from obtaining the vaccine. These conditions are rare; employers may request doctor certification to substantiate the employee’s inability to obtain the vaccine. Remember, this doctor certification verifies the need and instructions for accommodation, it is not an inquiry into the employee’s medical condition.
    2. Since a medical preclusion is rare, religious accommodation requests are on the rise. Rather than questioning the sincerity of the religious belief, ask employees, “What is it about your religious belief that prohibits you from being vaccinated?” and “What accommodation do you want?” This can help determine inability vs. preference and overcome the conflict between the religious belief and the job duty. Perhaps testing or working from home will suffice.
    3. Keep all accommodation documentation confidential. This documentation should be housed in a private secured area, separate from the personnel file.
  3. Be reasonable.

    1. Although some unreasonable accommodation requests may warrant unpaid leave of absence, that could leave your business short on staff and/or cause you to lose key employees, leading to low production and unnecessary turnover. Given the current labor shortage, many companies are finding it difficult to maintain good staffing. Remain compliant but err on the side of accommodating.
    2. Employers may find it difficult to prove a hardship, given the flexibility provided by hybrid work models. In discussing accommodation requests, employers and employees may find it helpful to consult the Job Accommodation Network (JAN) website as a resource for different types of accommodations.
    3. Ask yourself what is best for your company and your workplace to keep people working, while maintaining safety standards. Continue to implement face coverings and physical distancing, especially with the Delta variant, and check local health department guidelines periodically.
  4. Be prepared to pay for vaccinations.

    1. As with mandatory testing, employers are required to pay for vaccination costs under a mandatory vaccination policy. Vaccinations may be run through employees’ health insurance where applicable and otherwise be submitted for reimbursement.
    2. Employees must not receive a reduction in compensation for the time taken away from work to obtain the vaccine.
    3. Maintain proof of vaccination records and accommodation requests within a secured area separate from the personnel file, as you would with any medical records. Personal records must maintain confidentiality in compliance with the ADA.

Whether or not your business is required to implement a vaccine mandate, thinking through these points will help you anticipate challenges and navigate the process more smoothly.

Have questions or need assistance? Contact Armanino’s HRO group.

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Authors
Marina Brening, Consulting | Armanino
Senior Consultant
Resources
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