By Audra Hedberg, PHR, PHRca, SHRM-CP, Vice President of Services

The COVID-19 vaccine is quickly becoming more available to the general population. That’s great news for organizations that have been anxiously awaiting the green light to bring employees back to the worksite, right? Not necessarily–many people have reservations and may choose not to be vaccinated, creating a challenging conundrum for employers. Can employers require vaccination before reopening, and what accommodations need to be made for employees who decide not to get vaccinated? Unfortunately, many unanswered questions will have to wait to be determined by future case law, but employers can follow a few best practices to open safely while avoiding legal risk.

Is it legal to require employees to be vaccinated?

In short, yes. However, there are many factors that employers must consider before deciding to require vaccination. While federal guidance allows employers to require vaccination, employers must be aware of unique state guidelines and restrictions in the states where they have employees.

Federal laws and requiring COVID-19 vaccination

Both the Equal Employment Opportunity Commission (EEOC) and the Occupational Safety and Health Administration (OSHA) have released guidance in support of requiring vaccination to protect employees. However, several federal laws protect employees who refuse to be vaccinated for medical, health, and safety concerns, or religious beliefs.

Employers who decide to require the COVID-19 vaccine must develop a consistent policy that they apply equally to all employees and consider exemptions and accommodations for disability-related reasons under the Americans with Disabilities Act (ADA) and employees sincerely held religious beliefs. Accommodations an employer might provide include allowing an employee to work remotely or to take a leave of absence (note; the requirements for a leave of absence must be consistent for all employees).

State laws and requiring COVID-19 vaccination

Individual states are passing laws to address an employer’s ability to require COVID-19 vaccinations. For example, Oregon prohibits employers from requiring employees to get a vaccine as a condition of employment. In New York, the state legislature passed a bill that gives employees paid time off to receive the COVID-19 vaccine. As states continue to address vaccination, regulations will continue to evolve. Ensure your organization is monitoring national trends and state laws where you have employees. Consider how your policies may need to adapt to accommodate these trends and be prepared to respond quickly as new laws go into effect that impact your organization.

Consider alternatives to requiring COVID-19 vaccination

As an alternative to requiring the COVID-19 vaccine, employers may choose to implement a policy for voluntary vaccinations that encourages getting the COVID-19 vaccine and provides employees with factual and reliable information about the vaccine. Other approaches include covering the vaccine costs, providing on-site vaccination, and offering incentives to employees who choose to get vaccinated. This approach is less complicated for employers but requires additional safety measures like wearing masks, social distancing, and cleaning protocols to maintain a safe workplace.

Can an employer terminate an employee for not getting the COVID-19 vaccine?

Generally, yes, so long as this is in your policy, the employee acknowledged the policy, and they do not have a qualifying disability, a sincerely held religious belief, or any other qualifying reason for accommodation or other exceptions. However, this can be a risky decision. Employers should work with an HR professional and a legal team before making this decision. Be diligent by considering why the employee is refusing to get the vaccination. Ensure their reasons are not covered under the ADA or other federal, state, and local laws. If you decide that your organization will lay-off or terminate employees regarding their vaccination status, it is important to implement a COVID-19 vaccination policy that includes a clear statement regarding any consequences for not getting the COVID-19 vaccine.

HR best practices regarding COVID-19 vaccination

Employers have much to consider with regard to requiring COVID-19 vaccinations for employees working onsite. Because regulations are evolving rapidly and vary from state to state, any decisions should include contingency plans to accommodate changes in requirements, the spread of COVID-19, and vaccine effectiveness. Here are some general guidelines to keep in mind as you make decisions about requiring COVID-19 vaccination.

  • Implement a clearly written policy that is communicated to all employees. Allow the employees to ask clarifying questions and have them sign an acknowledgment in receipt of the policy.
  • Create or maintain an open-door environment. Ensure employees feel comfortable presenting concerns about receiving or not receiving the COVID-19 vaccine and other related workplace safety concerns. Document and address all concerns.
  • Train your managers and supervisors to recognize employee behaviors and flags that may indicate the need for medical or religious accommodation.
  • Ensure your organization has a compliant and thorough workplace accommodation process in place. Train your managers and leaders to apply consistent and fair procedures among all employees.
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