Last updated: 2/14/22

Can you require your employees to get a vaccine? Can their job status be impacted if they refuse? What about testing and masking requirements? What should, can, or can’t you do? The answers to these questions have shifted dramatically over the past several weeks as federal, state, and local governments issue — and then, in some cases, retract — mandates requiring employee vaccination.

Can Employers Require Their Employees to be Vaccinated?

Right now, it’s optional. Recently, a federal appeals court reinstated OSHA’s rule requiring all employers with more than 100 employees to implement either:

1. A mandatory COVID vaccine or
2. A mandatory testing/masking policy.

Recently, a federal appeals court reinstated OSHA’s rule requiring all employers with more than 100 employees to implement a mandatory COVID vaccine or testing/masking policy. Then, in a 6-3 vote, the U.S. Supreme Court walked that back, blocking Biden’s vaccine-or-test COVID-19 mandate. In response, some employers like Starbucks also walked back their vaccine mandates — a move that sparked backlash from customers and baristas. Meanwhile, other companies have opted to keep vaccine mandates for employees in place.

How to Handle COVID Vaccine Mandates at Your Company

While there’s still much uncertainty and polarization related to COVID and employer-required vaccine mandates, there are some emerging certainties:

• The virus isn’t going away anytime soon, and employers need to consider their position and approach.
• Employers are, and should be, concerned about the health of their employees and other key stakeholders.
• Companies will not be able to please everyone.
• Ongoing communication is critical.
• Employers need to follow whatever laws, mandates, and regulations apply to them in the areas where they operate, while providing accommodations as needed.

Given these truisms, there are some steps organizations can take even as regulations related to vaccine mandates ebb and flow.

Be True to Your Brand — and Your Values

In the absence of a legal vaccine mandate, your organization can lean on its own values when choosing how to proceed and address health and safety issues as COVID concerns continue. Most healthcare organizations, for instance, are likely to err on the side of exercising caution to protect both employees and patients. Other organizations may not have these same concerns — e-commerce companies, for instance, with limited person-to-person interactions.

Decide what makes the most sense for your organization and its key stakeholders, create a policy, set up processes that you will follow, and plan for lots of communication, while, of course, complying with any legal mandates.

Keep Health and Safety Top-of-Mind

The health of your staff and customers has always been important — the issues are just more heightened and apparent today. Still, the decisions you make should be based on protecting your employees, customers, and other stakeholders given the environments in which they work. For instance, employees working directly with others in close proximity and tight locations may need more robust safeguards, such as masks, vaccines, or regular COVID testing. Those working from home or only outdoors may not need the same number or types of precautions.

For customers, even absent vaccination or masking requirements, it may be a good idea to maintain safe social distancing guidelines and have hand sanitizer readily available and visible.

Agree to Disagree

Pandemic vaccine opinions remain as contentious as political opinions, with people on both sides of the “to vax or not to vax” issue. A good strategy to navigate these opposing views in the workplace is to focus on creating and sustaining a culture of respect — similar to the respect you demand around issues related to harassment of any kind. Make it clear what you will and will not tolerate in terms of employee behaviors that become contentious or even potentially violent. This could take a similar approach to the expectations you have around political discourse.

Be alert to the potential for workplace harassment and retaliation based on beliefs related to safety or vaccination status. The EEOC has filed lawsuits in El Paso and Fort Worth, Texas, based on COVID-related harassment. In addition, OSHA rules prohibit retaliation against employees who request certain protective gear or raise concerns about COVID-related safety at work.

Keep Lines of Communication Open

With so much in flux, it’s important to keep lines of communication open so employees remain up to date on issues related to potential mandates as well as your response to mandates, or your own policies and expectations. Use multiple channels and offer opportunities for two-way communication to allow employees to freely share their questions and concerns, respectfully.

Stay on Top of Mandates and Laws Impacting You

Things are still likely to change as battles wage on between those who want more, and those who want less, regulation over vaccines. Employers can’t really do much about the uncertainty, at least in the short term. They can — and must — though, follow any regulations that do come about — therefore, if you don’t already have someone in your organization designated as the go-to for information on regulatory requirements, you should.

In addition to whatever mandates may be in place, employers must also still abide by EEOC laws, which include the Americans With Disabilities Act (ADA), Rehabilitation Act, Title VII of the Civil Rights Act, Age Discrimination in Employment Act (ADEA), and Genetic Information Nondisclosure Act. It’s important to understand these laws “do not interfere with or prevent employers from following the guidelines and suggestions made by the CDC or state/local public health authorities.” To help, the EEOC has published its Pandemic Preparedness in the Workplace and the Americans With Disabilities Act.

Provide Accommodations as Needed

If employers adopt vaccine mandates or other COVID protocols, under the EEO laws some people may be entitled to exceptions or special accommodations. Employers need to understand who these people are and how to manage the process of evaluating and approving exceptions to any COVID mandates they may put in place.

Employees who may be exempt include:

• Those who require medical accommodations, including:
  ◦ Employees who are pregnant
  ◦ People with certain health conditions, such as those who have disabilities, who’ve had a severe allergic reaction after a previous vaccine or who are allergic to any ingredient in the vaccine
• Those who require religious accommodations

Employers are required to accommodate qualifying medical and religious exemptions unless doing so would create an “undue hardship.”

The bottom line is it’s important for employers to make sure they’re responding appropriately and compassionately when employees need accommodations. Requests for ongoing COVID-related accommodations due to underlying conditions or vulnerabilities need to be attended to carefully. Additionally, keep in mind just because someone is vaccinated doesn’t mean they don’t have a vulnerability or need accommodations. (Consider Colin Powell who was vaccinated, but was older and had other underlying health conditions when he contracted the virus and later, unfortunately, died.) Evaluating situations case by case is critical.

And, of course, even absent COVID-related considerations, employers must still make accommodations for employees with disabilities when reasonable to allow them to perform the duties of their jobs.

Additional Support to Keep Employees Healthy and Safe

Looking for additional ways you can make 2022 a more healthful year for your workforce? EVERFI can help expand your organization’s approach to keeping employees healthy in a changing environment through training that helps promote employee well-being, prevents harassment, and creates a more inclusive work environment.