During his first primetime presidential address, President Joe Biden promised that all U.S. adults will be eligible for a coronavirus vaccine by May 1, assuring Americans that the pandemic could be nearing its end in the United States.
Currently, three vaccines have been approved for use in the United States. As the vaccination rollout proceeds and the Biden administration pushes for even greater expansion, many employers and employees alike are pondering the same question:
Can businesses require team members to get vaccinated??
The short answer: Yes.
Employment in America is mostly “at will,” meaning employers can set working conditions and employment requirements.
However, it’s a little more nuanced and complicated than you may think, and many employers are choosing not to require the vaccine even though it is within their rights to do so.
According to a recent survey conducted by the Society for Human Resource Management (SHRM), 60% of organizations say they will not require the vaccine for employees, and 35% are unsure whether they will require the vaccine for employees.
Perhaps a better question is: Should vaccination be a requirement or a recommendation?
If an employer requires vaccination, they can be responsible for any adverse effects their team members may experience due to the vaccination.
Employers are already facing potential claims against them should a team member contract COVID-19 while at work. Requiring vaccination may open the door to more worker’s compensation claims and legal action against the vaccine makers should a team member have an adverse reaction.
Additionally, the politicization of the vaccine adds to the unease employers may feel when deciding whether or not to issue a vaccine mandate. For these reasons, many employers are likely to recommend--not require--that their employees receive the COVID-19 vaccination.
At least 74% of organizations that are unsure or not planning to require vaccines for their employees will still encourage their employees to get the COVID-19 vaccine.
For employers who wish to recommend vaccination strongly, there are ways to remove barriers to access, increase communication and motivate team members to take this preventative measure, similar to the methods employers use to encourage a yearly flu shot.
- Arrange on-site vaccinations for employees, if possible
- Display promotional posters with information about the vaccine around the workplace
- Post content in workplace communications, such as newsletters, that talk about the benefits of vaccination
- Share information with employees regarding where they can find clinics that administer the vaccine
- Provide paid time off for team members to visit a doctor or clinic and receive their shot
- Provide paid time off after receiving the second dose of the vaccination, as many have reported not feeling well the next day
The Biden administration recently announced a joint effort with several large businesses and corporations in the launch of a new initiative to persuade employers to provide financial incentives that encourage employee vaccination. This initiative encourages paid time off for vaccination among other bonuses or cash incentive offers.
Where will vaccination be more strictly enforced?
In some fields, due to the nature of the work, vaccination may be mandated by necessity. These include:
Healthcare workers and first responders are already required to get a flu shot and undergo other preventative health screenings. They are also at the top of the list to receive the COVID-19 vaccine.
However, even in the healthcare sector, employee pushback has occurred. Recently, 21 employees of a Wisconsin nursing home quit after a vaccination mandate was issued, 15 of the 21 are currently seeking legal action.
Because of concerns over outbreaks in food production, especially in the meat-packing industry, employers in those sectors may be more likely to issue a vaccine mandate or offer financial incentives for vaccination, for example, the meat packing company JBS USA is offering employees $100 in bonuses to receive the vaccine.
Cooks, servers, and bartenders come into direct contact with consumables and the general public. For this reason, employers may consider vaccination an essential part of job safety.
The expectation is that teachers in public schools will eventually be required to vaccinate. Many schools already require up-to-date vaccinations for students and teachers alike; currently COVID-19 is not required, but most states are offering voluntary vaccinations for educators. There is also a presidential push to prioritize educator vaccination.
Those in essential positions, such as warehouse workers, seem to be at an elevated risk of contracting COVID-19. Because they work near each other and the public, vaccinating those team members is a priority to many.
The Pentagon has not yet issued an inoculation mandate against Covid-19, however, in a recent press briefing Press Secretary John Kirby indicated full FDA approval could change how the military's leadership responds to this issue. Several military leaders have already expressed their desire to see a vaccination mandate for Covid-19.
Who may be exempt from the requirement?
In certain circumstances, employees may be exempt from employer requirements for the COVID-19 vaccine, or any vaccine for that matter, for reasons like:
Religious and Health Reasons
Team members who have sincerely held religious beliefs, practices, or observances that prevent them from taking the vaccine and those with medical reasons for forgoing vaccination are entitled to seek vaccine exemption.
ADA and Title VII Guidance
Last spring, the U.S. Equal Employment Opportunity Commission (EEOC) issued updates to the Americans with Disabilities Act (ADA) and Title VII of the Civil Rights Act of 1964 in response to the pandemic, stating that employers must provide reasonable accommodations for those who are unable to receive the vaccine. If an employer can give alternative working conditions that achieve the same safety level as vaccination, the employee cannot be terminated for failure to get vaccinated.
Reasonable accommodations and alternatives to vaccination include:
- Working from home
- Wearing a mask
- Working separately from others
There’s a lot to weigh when businesses consider how to approach vaccination in the workplace. On the one hand, employer requirements for vaccination undermine team member autonomy. On the other, vaccination protects team members and the public alike, which is good for business and the community as a whole.
There is no question that employers have a difficult decision to make about whether or not to require or recommend employee inoculation. While it is within their right to mandate vaccination, doing so may result in major concerns or even legal implications. For this reason, many are leaning in the direction of recommending vaccination but not requiring it. It remains to be seen if recommendations and financial incentives will be enough to encourage sufficient employee vaccination in order to achieve herd immunity.
Note: Commentary from TeamSense should not be construed to be authoritative legal or public health guidance. Organizations should follow the latest guidance from relevant governmental and public health authorities and seek counsel from appropriate Legal, HR, and EHS professionals.
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