[Podcast] Poking Around the Mandatory Vaccination Question
You wake up and feel a little fatigued but brush it off as a restless night of sleep and go to work. By midday the fatigue really sets in, your throat feels a little scratchy and you’re starting to feel congested. By the end of the day your thoughts are foggy, and your eyelids burn your eyes when you shut them. You get home and take your temperature as a precaution only to find you have a fever. By the end of the night you are in full-blown flu mode. No problem, right? You have accumulated time off and can just call out sick until you feel better. But what about all your co-workers you just exposed at work? Next thing you know, the flu spreads like wildfire and unbeknownst to you, you were patient zero. This is a pretty typical scenario during cold and flu season where one often goes to work not knowing they are contagious, pushes through the day, then goes home. By that point the damage is done. Now, combine that scenario with an active COVID pandemic and you have a recipe for workspace disaster. As an employer you may be seriously considering making flu vaccinations mandatory, or perhaps the COVID vaccine when it is available. But can an employer make its employees get vaccinated to protect themselves and their co-workers?
Mandatory vaccinations have often been reserved for those in the healthcare industry to protect patients and co-workers alike. As an employer in a non-health care industry you may be tempted to implement similar precautions considering current conditions. Before you embark on such a journey, you will want to familiarize yourself with the Equal Employment Opportunity Commission’s (EEOC) Q&A number 13. The question pertains to an employer’s ability to mandate vaccinations regardless of an employee’s medical condition under ADA, or sincerely held religious beliefs under Title VII of the Civil Rights Act of 1964. In short, the answer is No.
Prior to the pandemic health care industry employers wrestled with the same challenges. While most of the employees comply because the can and choose to do so to protect themselves, their families and their patients, there are a small few that cannot. This is where a reasonable accommodation comes into play. The typical accommodation in the case of a healthcare worker is to require that non-vaccinated employees wear a face covering during the full duration of their respective shifts in an effort to protect those around them, much like the current face covering guidelines issued by the CDC, State and Local governments. What is important to understand here is employer’s CAN encourage employees to get vaccinated to protect themselves, their loved ones and their co-workers, but must also be prepared with accommodation alternatives for those that cannot due to medical reasons, or will not due to sincerely held religious beliefs, practice or observance. Now, one may ask “What about conscientious objectors or anti-vaxxers”? While there is case law that may support the employer in this instance, one must always keep in mind that the results are very specific to the details of that case. The cost of litigation, even if an employer wins the case, can far out way the benefit of getting a single employee to vaccinate. Therefore, it would be financially prudent to explore a reasonable accommodation in the case of a conscientious objector or anti-vaxxer.
This is not meant to discourage an employer from a vaccination strategy, but rather to take a position of encouragement whereby the majority, if not all, employees may comply. So, what does a strategy of encouragement look like? To start, utilize the CDC’s fact sheets and posters to guide your strategy and educate your team. Next, decide on an employer hosted vaccination on site or employee guidance to local facilities that can administer the vaccinations. Either strategy works, it just depends on one’s desire to be directly or indirectly involved in the process. Some business leaders have even incorporated games, luncheons and raffles for employees that were vaccinated. While these are wonderful actions to make vaccinations a positive event, know that you must present it in a way that does not exclude those that cannot or will not be vaccinated. Disparate treatment of employees is a whole other topic. Don’t let the fear of challenges with subsequent reasonable accommodations drive you away from implementing a vaccination strategy. Instead let education, encouragement, and desire to maintain a healthy workforce be your guide.