Employers across the country are creating and enforcing mandatory COVID-19 vaccination policies. With the DELTA variant causing cases to soar again, and President Biden’s recent plan to reduce the spread of COVID-19, more organizations are drafting policies and mandates. As employers navigate creating a safe work environment for employees, there are several important factors to consider when adopting a comprehensive and legally sound mandatory COVID-19 vaccine policy.

What should be considered before implementing a mandatory COVID-19 vaccination policy?

Before mandating COVID-19 vaccinations, consider the effect it will have on your employees and your organization by addressing these critical questions:

Are your employees at increased risk of exposure to COVID-19?

Every work environment poses different levels of risk, which will inform various aspects of your approach to COVID-19 safety policies. Interaction with the public, where employees work, how you regulate physical distancing, masks, and common areas should be considered when determining potential exposure and risk mitigation requirements.

Will a mandatory COVID-19 vaccination policy apply to all employees?

Consider the percentage of your population with increased risk of exposure and if it is advantageous to set company-wide requirements or establish unique guidelines based on exposure risks related to job requirements. Consistency is key to avoiding discrimination claims, and it is imperative to focus on job-related necessities rather than pick and choose who is required to receive the COVID-19 vaccine.

Do employees work onsite, remotely, or a mix of both?

COVID-19 risk mitigation policies will vary greatly depending on the makeup of your workforce regarding remote work, employee interactions, contact with customers, and scheduled in-person activities.

Are your employees likely to comply?

The COVID-19 vaccine has become a controversial topic. It is essential to consider any potential objections you may encounter if they have legal justification and how you plan to address them beforehand.

What proof will you require from employees, and how will you document it?

Consider what you will accept as valid proof of COVID-19 vaccination and how you will store and document that information. Be sure to follow applicable confidentiality requirements, as proof of COVID-19 vaccination is considered personal medical information.

Does a union represent your employees?

If any unions represent your employees, be sure to include them in decisions about risk mitigation and implementation of a mandatory COVID-19 vaccination policy.

How will you address accommodations for employees requesting a religious or medical exemption?

The EEOC requires accommodation for employees who may be medically disabled or have a seriously held religious belief. Ensure that you have procedures in place for accommodations that are consistent and fair. Personal and political views should not be considered. Additionally, care should be taken to avoid losing employees in a tough labor market.

How will you manage leave and wage and hour considerations?

Employees may be eligible for paid leave to receive the COVID-19 vaccine and manage any resulting symptoms. States such as Illinois and New York have stated that employers requiring employees to get vaccinated for COVID-19 must also provide paid leave for getting the vaccine. Additionally, this may be a requirement federally for all employers with 100 or more employees under the Path out of the Pandemic Plan. If an employer offers vaccines onsite, that time is considered compensable. Be sure to check federal, state, and local requirements.

What should be included in a mandatory COVID-19 vaccination policy

After making decisions based on the considerations above, craft your mandatory COVID-19 vaccination policy with the following critical components.

Reasoning behind the policy.

Include an explanation of the health and safety reasons for why you are implementing a mandatory COVID-19 vaccination policy. Aside from being a good best practice, it prevents potential risks associated with EEOC regulations.

Who the policy applies to. 

Be sure to clarify whether the policy applies to all employees or specific groups of employees, such as those working in shared workspaces, with the public, etc. Again, it is prudent to lay out the health and safety reasons behind these decisions.

Required proof.

Outline what documentation is required for proof of COVID-19 vaccination.

Timeline requirements.

Set a deadline for when employees must be vaccinated and at what point they may return to the workplace. The CDC considers someone fully vaccinated; 2 weeks after their second vaccine dose (Pfizer or Moderna) or two weeks after their single vaccine dose (Johnson & Johnson’s Janssen).

Exemptions and reasonable accommodations.

Inform employees about what qualifies as an exemption, typically a medical disability or seriously held religious belief. Define how employees go about requesting an accommodation and a general explanation of the process.

Compensation or incentives.

Many employers offer employees incentives such as a one-time bonus or other benefits. Clearly outline what these incentives are and ensure they are offered to all employees equally.

Consequences of non-compliance.

The COVID-19 vaccine has become a polarizing topic for many. Clearly explain how and what disciplinary action will be taken for employees who refuse to comply and apply them equally across your entire employee population.

Other important notes to be aware of

On August 23, 2021, the FDA (Food and Drug Administration) approved the Pfizer COVID-19 vaccine paving the way for more employers to require vaccination by easing concerns about receiving a vaccine that had not been fully FDA approved.

In addition to FDA approval, OSHA (Occupational Safety and Health Administration) has released guidance encouraging employers to mandate vaccinations for employees and provide regular testing requirements for unvaccinated employees. Vaccine mandates are supported by the EEOC (Equal Employment Opportunity Commission), the CDC (Centers for Disease Control and Prevention), the DOJ (Department of Justice), and President Bidens newly announced plan to reduce the spread of Covid-19.

Numerous states and municipalities require certain workers to be fully vaccinated or provide a negative test at regular intervals, in addition to mask requirements. Be sure to check local and state laws, as vaccinations may be required based on specific industries and by a certain date, along with unique leave and compensation requirements that vary from state to state.

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