It’s perfectly legal to mandate vaccines – if you’re legally perfect!

articles Dec 23, 2020

In 1942, Franklin D. Roosevelt was president and Lieutenant Edwin P. Ramsey ordered the last cavalry charge in American history. Nearly eighty years later, the presidents and CEO’s of Moderna, Pfizer, AstraZeneca, GSM, Sanofi, and others leading the vaccination charge, are our new heroes. Saddling up and replacing swords and rifles with needles, they are heading out to save lives throughout the world.

But can you force your employees to be saved? Can you enforce vaccine compliance? What do you do if there’s pushback or refusal?

The Equal Employment Opportunity Commission (EEOC) has issued guidance that helps employers determine how to move forward, although their advice is just as we would suspect – not abundantly clear and subject to change.

Employers may encourage or even possibly mandate vaccinations, but any policy that affects the health and safety of your Team Members must comply with the Americans with Disabilities Act (ADA), Title VII of the Civil Rights Act of 1964 (Title VII) and other workplace laws.

What you can do? The ADA clearly states you can create and enforce a policy that includes a requirement whereby “an individual shall not pose a direct threat to the health and safety of individuals in the workplace.” What you cannot do is be vaguely selective in my opinion. Team Members who have different roles and responsibilities but come into contact with the same patients should not have different rules. It would be hard to justify a claim that a TC is more likely to be a risk than an PEC. Why set yourself up for a painful claim of favoritism, discrimination or retaliation?

Any employees with a religious objection or disability can refuse to be vaccinated and may require ‘reasonable accommodation.’

Title VII of the Civil Rights act requires you to accommodate a sincerely held religious belief, practice, or observance, unless it would cause an undue hardship on the business. Proving that hardship is not always easy. Cases in the past have required that the proof of a hardship must be much more than just a small inconvenience or minor cost to the employer. When clients ask me, if I think that the burden is too large or the cost is minor, my response is usually “How big is a rock?” Who’s to say? What is clear to you is potentially very clear to your employee – from the individual perspectives of you both. Making it possibly even more contentious, is your objective questioning to ascertain if the validity of the beliefs, practice or observance, and asking for supporting justification for a refusal. My advice? Don’t. Unless the request is clearly and unequivocally ridiculous – don’t question it. You are clearly safer by assuming that the request is genuine.

For Team Members with disabilities, the ADA allows for employers to require documentation from the employee’s medical provider to confirm the limitation or disability and a need for accommodation. Here lies another trap to the employer who handles the request clumsily.

That leaves you with reasonable accommodation, which is somewhat easier to navigate. Factors to be considered are defining how critical to your operation the vaccination is, what the functions of your employee(s) requesting accommodation are and if there is a function that would render the employee(s) less of a risk to others. With rising cases of COVID-19 and the nature of your business combined with the functions and risks, you may determine that reasonable accommodation is out of the question. The only function that might be considered is a ‘work from home’ equivalency to some of the front desk duties. I think that would only apply if it were the front desk that was requesting accommodation.

That leads to the question of what to do if reasonable accommodation isn’t applicable, available or acceptable. To answer that question, I would refer to Johnny C. Taylor Jr. SHRM President and CEO who recently stated: “If an employee cannot get vaccinated because of a disability or sincerely held religious belief, and there is no reasonable accommodation possible, an employer could exclude the employee from physically entering the workplace,” adding “but this doesn’t mean an individual can be automatically terminated. Employers will need to determine if any other rights apply under the EEO laws or other federal, state and local authorities.”

Of course, nothing as important to the health and safety of our Team Members, patients and our businesses can be expected to be simple. But hopefully some easy-to-follow guidelines might help and keep you ‘legal’ and at the same time, get the results you want – a fully vaccinated and safe workplace.

I highly recommend that you communicate clearly and often with your Team. It’s not too early to develop a policy that outlines your expectations and the need for everyone to be vaccinated. Don’t assume that everyone understands or is willing to have needles jabbed into their arm. Although the numbers are increasing, and household names are sharing their vaccinations on our television screens, we are still a long way from full acceptance. In mid-December, over a third of people in the US claimed an unwillingness to be vaccinated, and the percentage of skepticism is higher in minority groups.

In a carefully worded policy, outline as concisely as you can the procedures and need for open, but confidential communication. Phrase the ‘mandate’ as all-inclusive and why you have determined it must include all Team Members. State any requirements that define compliance deadlines. Make it clear how any Team Member who requires accommodation should communicate their request. Finally, make every expectation reasonable. Asking everyone to comply within the next week when vaccines are not readily available is not reasonable.

Every day we are one step closer to normality. Getting there will take more than just writing a policy.

Employers of choice can take extra steps to protect the health of everyone and boost morale. Start by setting the tone and getting your vaccination first and then take it to the next level. Consider finding out as much information as possible regarding where vaccines are being administered and share the information. Pay for the vaccine itself and allow for your Team Members to get theirs during the work week or provide paid time off. Finally, I would also commit to providing paid time off, without any penalty, for employees who may need time to recover from any side effects.

Shared by Sean Barnard, SHRM-CP

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