Ensuring Your Employee Vaccination Strategy is in Compliance
You’ve made plans for how your organization will handle employee vaccinations, and now it’s time to focus on executing your strategy in a way that mitigates risk and keeps you in compliance. Here is what you need to know* to protect your organization while protecting employees from COVID-19.
Legal Stipulations of Mandatory vs Voluntary Vaccinations
Under OSHA, every workplace is responsible for creating a safe environment for employees. With the rise of the pandemic, factors related to reducing the transmission of COVID-19 have become increasingly important – such as enforced social distancing measures and mask policies. But, where does employee vaccination fall under that umbrella? Depending on whether your organization plans to take a mandatory or voluntary approach to vaccinations, risks may change.
When Employee Vaccinations are Mandatory
As the name suggests, mandatory vaccine programs require vaccination as a condition of employment. For some industries and companies, this may make sense depending on the line of work. Companies participating in a mandatory vaccination plan must ensure they provide the proper accommodations to their employees. Employees with disabilities or certain religious beliefs are among those who may be exempt from vaccination, so it is important to have a way to account for these exemptions and have a plan in place for when they occur.
There are potential risks under both state and federal laws associated with mandatory vaccines, so it’s important to check your local regulations and consult with your legal advisor to ensure compliance.
In the event that an employee refuses the vaccine, employers need to evaluate the risk it poses to other workers at their organization. The Americans with Disabilities Act (ADA) outlines that workplace policies can include a requirement for which the individual in question cannot pose a direct threat to the health of other employees.
However, certain requirements may exempt some employees from the vaccination. In this case, employers must be able to prove that this employee poses a health or safety threat to others in the workplace that cannot be reduced using reasonable accommodations. According to the Equal Employment Opportunity Commision (EEOC), employers should evaluate (1) the duration of the risk, (2) the severity potential harm, (3) the likelihood of potential harm (4) the proximity of potential harm.
Further, the EEOC states, “If there is a direct threat that cannot be reduced to an acceptable level, the employer can exclude the employee from physically entering the workplace, but this does not mean the employer may automatically terminate the worker.”
So, if an employee who is exempt does pose a possible threat, reasonable accommodations should be sought such as allowing them to work from home, take a leave of absence, or use the proper PPE and social distancing protocols in office.
Both employers and employees should work together for a potential solution in order to properly accommodate workers.
Religious exemptions must also be taken into consideration. Employers must accommodate employee’s religious beliefs unless it would cause undue hardship on their business. It is important to note that the EEOC outlines that employers should assume an employee is sincere about their religious beliefs and accommodation request, but can request additional information if they have a valid reason to believe otherwise.
Just like disability accommodations, employers should work with employees to try and find a reasonable accommodation that works for both parties.
The EEOC states, “Once an employer is on notice that an employee’s sincerely held religious belief, practice, or observance prevents the employee from receiving the vaccination, the employer must provide a reasonable accommodation for the religious belief, practice, or observance unless it would pose an undue hardship under Title VII of the Civil Rights Act.”
When Employee Vaccinations are Voluntary
Voluntary vaccine programs give employees the power to choose, significantly lowering legal risks for your company. What is most important here in terms of compliance, is ensuring all communication going out surrounding the vaccine is 100% accurate and up to date, and that all employees receive the same information regardless of position. Additionally, if your company plans to track vaccination records, they must do so in a secure, HIPAA compliant manner. Learn more about executing a successful voluntary vaccination program here.
Tips for Mitigating Risk
There is much to consider when rolling out an employee vaccination campaign, whether mandatory or voluntary. Be sure whichever path you take, that you keep these tips in mind to lower legal risk:
- Ensure HR leaders or those in charge of disbursing information are staying abreast of any news or developments from the FDA.
- Ensure employees have equal access to vaccines, regardless of ranking within the company.
- Plan for exemptions and develop a written policy for your employee vaccination plan.
- Track all vaccination records using a secure, HIPAA compliant platform.
- Check all local and state regulations, these can vary on a state or country basis.
- Consult with your organization’s legal counsel for further guidance.
Before You Get Started
An important first step is to carefully weigh the pros and cons of a mandatory vs. voluntary vaccine program at your organization. This clear vision on your organization’s path ensures you can create a plan that properly accounts for exemptions and procedures to follow if they do arise. Once you’ve talked with stakeholders, inform your HR team so they can communicate with employees. Navigating this situation can feel overwhelming, so be sure to talk with upper management, other professionals in your field, and even employees to look after the best interest of everyone involved.
Need help navigating how to develop a proof of vaccination program? Contact us.
*Please Note: This blog is solely informational and is not intended as legal advice. Always consult legal counsel before creating and executing your plan.