Can You Require Your Employees to Get the COVID Vaccine?

May 10, 2021
Few employers have done so, but there are legally sound options.

Manufacturers have faced a number of challenges throughout the COVID-19 pandemic. Unlike those companies that were able to transition from in-office to a remote work environment, those in the manufacturing industry have a predominately onsite employee base and remote work is not a viable option.

As a result, you, as a manufacturer, may have experienced:

  • Either a rapid decline or uptick in business, depending on the product(s) you manufacture
  • An increased cost in onsite safety measures that are based on CDC, OSHA, and other mandatory guidelines
  • A higher number of positive COVID cases among your workforce than in the general population

With vaccinations now available to all adults across the U.S., you are probably fielding a variety of questions from employees and are trying to make informed decisions about your COVID-19 vaccine policies. Legal considerations, such as how to approach structuring and communicating these policies are among the most common concerns, so let’s address these and other pertinent questions:

Can I require my employees to take the COVID-19 vaccine?

The short answer is yes, you can: If that’s what you deem to be the best route for your organization. For example, if you manufacture medical supplies or you’re in industrial food prep, you may feel it’s necessary to ensure the safety of your employees and the end user of your product.

From a legal standpoint, you can require the vaccine as a condition of employment based on previous regulations established by the Equal Employment Opportunity Commission (EEOC). In its 2009 guidance on pandemic preparedness, the EEOC stated that employers can require workers to get the flu vaccine, which laid the groundwork for subsequent vaccines designed to protect American workers.

Whether you choose to mandate or strongly encourage the vaccine, open communication with your employees is critical. As with any type of change management, helping your team to understand the “why” behind your reasoning—that their health and safety is paramount—can go a long way. To help with this communication, the CDC has a great toolkit with resources that provide clear and accurate information, including key messages, template letters, posters, presentations, and more. The resource can help you educate your employees about the vaccine and its benefits, and it will provide you with the tools to answer questions or address any concerns.

What if an employee refuses or is unable to take the vaccine?

If you do choose to require the vaccine, you will need to be prepared to go through the necessary steps if an employee refuses—or is unable—to take the vaccine.

Some of the most common reasons employees are opting out include:

  • Personal beliefs
  • Fear or disagreement with the concept altogether
  • Medical or disability-related reasoning
  • Religion-based reasoning

To keep these employees and their coworkers safe, you can choose to provide “reasonable accommodations” for anyone who chooses not to take the vaccine. But you are only required to provide reasonable accommodations to those who cite medical conditions that preclude them from receiving the vaccine, or who have sincerely held religious beliefs that will not allow them to receive it.

The American with Disabilities Act (ADA) provides an exception for employees with disabilities, and Title VII of the Civil Rights Act of 1964 provides an exception for employees with sincerely held religious beliefs. The EEOC’s What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws provides current, detailed guidance for employers and employees.

Under the ADA, an employee can request exclusion from an employer’s COVID-19 vaccine requirement but should provide reasons why his or her disability precludes a vaccination. Your company can request supporting documentation from a medical provider, and if proven to be valid, you must provide the employee with reasonable accommodation, which could include putting them on a leave of absence while holding his or her job secure, changing the way or where they do their work, or offering a temporary reassignment to another role—among many other options.

If you operate in a high-risk industry—manufacturing goods that will come into contact with vulnerable populations, for example—the decision to require employee vaccinations may be easier to make because the EEOC and CDC have deemed COVID-19 a “direct threat.” As long as you reasonably accommodate employees with disabilities or religious reasons that are preventing them from getting vaccinated wherever possible, your company’s risks will be reduced.

What “reasonable accommodations” should I consider?

In the manufacturing industry, where working from home is often not an option, how you provide “reasonable accommodations” to an employee who cannot be vaccinated will need to be determined on an individual basis. Some options may include:

  • Continue masking and personal protective equipment (PPE) along with proper sanitation.
  • Provide a work location that is separated from others.
  • Move the employee from a people-facing role to one that limits their contact with others.
  • Offer a leave of absence under the Family and Medical Leave Act (FMLA) or ADA, if applicable or appropriate.
  • If you have chosen to continue offering Emergency Paid Sick Leave or Emergency FMLA, consider allowing an employee to take a leave of absence if appropriate.
  • There may be state-specific leaves available, with or without pay, that employees may qualify for, so be sure to check your local regulations.

In many states, masks and other COVID safety mandates are being lifted. No matter the circumstance, as an employer you are required under OSHA’s “general duty clause” to provide a safe work environment for your employees.

Although we all would prefer it if the pandemic was behind us, we’re not quite there yet. At this point, keeping certain safety protocol in place such as masking, proper distancing, and other sanitation measures, will help you keep your employees safe and will provide you with some degree of protection from liability.

 Whether you decide vaccines will be mandatory or voluntary, put your employees first

Even though the EEOC and the CDC support vaccinations, it’s best to be sensitive to your employees’ concerns. It’s important to balance the potential health benefits of a vaccinated workforce against less measurable factors such as employee morale and your workplace culture. Organizing a group of employees, for example, to help develop a plan, process, and incentives that will encourage your workforce to get vaccinated can be a great way to gain participation and get the word out—peer to peer.

The Society for Human Resource Management (SHRM) offers additional recommendations to consider:

  • Develop vaccination education campaigns.
  • Make obtaining the vaccine as easy as possible for employees.
  • Cover any costs that might be associated with getting the vaccine.
  • Provide incentives to employees who get vaccinated.
  • Provide paid time off for employees to get the vaccine and recover from any potential side effects.

The COVID-19 pandemic has been difficult for most businesses and their employees. If you feel that requiring or encouraging your employees to get the vaccine is the right move for your organization, that is your choice. When you define your vision and clearly communicate your reasoning in a way that shows how much you value your team, you’ll see how easy it is to successfully move forward together.

Rachel Williamson is a senior HR advisor for G&A Partners, a leading professional employer organization (PEO) that has been helping entrepreneurs in all industries grow their businesses for more than 25 years.

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