COVID-19 vaccines (mRNA) were first administered in the U.S. on December 14, 2020. With an expectation of 95% effectiveness, many people see this development as a beacon of hope at the end of a long, dark tunnel. However, not everyone is on board with getting the vaccine or returning to the office, and many employers are contemplating whether or not they should require vaccination.
According to the Mayo Clinic, “getting vaccinated might help protect people around you from COVID-19, particularly people at increased risk of severe illness from COVID-19.” So employees who work remotely may feel vulnerable returning to an environment where others have not been vaccinated.
On the employer side of the equation, the Equal Employment Opportunity Commission (EEOC) states that employers can legally require COVID-19 vaccination based on guidelines as a condition of going to work. Therefore, the big question for employers is that just because a vaccine is available and can be legally required, should employers mandate it?
It’s a big question for each employer to answer. That’s why it’s important to have a clear policy and be prepared to address concerns from employees. Companies that decide to mandate vaccines should be ready for resistance from any employee who does not want to receive a COVID-19 vaccine.
Now is the Time To Formulate a COVID Vaccine HR Plan
There are many reasons why you may consider requiring that employees receive the vaccine before returning to work. Here are some general reasons to consider mandating the vaccine:
- Your company experienced an uptick in lost work days during the pandemic.
- Your workforce has a disproportionate number of high-risk employees.
- Your employees currently work in close quarters or would resume working in close quarters if they returned to their previous work environment.
Conversely, there are reasons why it may not be a good idea for your company to mandate the vaccine for employees to return to work.
- Your company’s workforce was not materially affected by the pandemic.
- You do not have a significant number of high-risk employees.
- You have built-in social distancing at your place of business, or you have complete confidence in your ability to meet health and safety measures on a daily basis.
Regardless of your particular situation, one of the most important steps for employers to take in regards to the vaccine is to create a policy that clearly outlines whether your company will or will not mandate the vaccine.
While human resource executives have always been charged with the responsibility of framing employee behavior that is consistent with business necessity, the COVID vaccine HR challenge will be to create job-related and consistent guidelines unique to this situation.
The Food and Drug Administration (FDA) has now officially approved (licensed) the two vaccines currently in use, Pfizer-BioNTech and Moderna. However, these shots are being administered under Emergency Use Authorizations (EUA) from the FDA. It is anticipated that the vaccinations will be widely available in Spring 2021 with FDA approval following six months of documented safety data.
In the meantime, there is a high level of anxiety surrounding the vaccine. People are worried about when they will receive it, how they will react to it, if it will be effective, and how their employers are addressing workplace safety.
For organizations that choose to require vaccines, there will be employees worried about losing their jobs. This is why it is vital to begin working on a policy now to set expectations. The policy rollout will need to include how the policy will be communicated and how exceptions will be managed.
Other Considerations for Policy Development and Implementation
To protect employees in the workplace, some employers have questioned if a vaccine for employees can be mandatory from a legal standpoint. The EEOC does not preclude employers from requiring employee vaccines. However, this is a difficult decision for many companies.
A good example is the health care industry. Hospitals and nursing homes, concerned about protecting residents and staff, are eager for their workers to be vaccinated. But some argue that demanding vaccination is unethical because the accelerated rollout leaves a void in long-term safety information. Also, some organizations are concerned that unwilling employees may resign, which is particularly worrisome in industries already facing challenges filling positions.
Before bringing employees back to your facility, your HR leadership team should align on the reasons your company would want to require vaccinations. Look at your employee population and the industry. For sectors like manufacturing, logistics, hospitality, food service, and health care, which require on-site workers, mandatory vaccination makes sense.
To gauge employee receptiveness to vaccination requirements, consider feedback and compliance with previous requirements to wear masks, abide by social distancing rules, and follow safety protocols. If most employees easily transitioned to the new normal, this will likely provide insight into what percentage of your staff will accept or contest vaccinations.
Know the federal and local laws. Companies that operate across state boundaries and jurisdictions need to ensure compliance with state and local laws as well as mandates. You may want to consult with your legal team. The Congressional Research Service indicates that the government may not be able to mandate vaccination at the federal level but can do so at the state level. “The states’ general police power to promote public health and safety encompasses authority to mandate vaccination.”
The Impact of Claiming Undue Hardship
Now consider the role of employees in this situation. If an employer requires the vaccination and the employee refuses -- claiming it is due to religion, disability, or another protected reason under the law -- the employer is expected to offer a reasonable accommodation that would enable the employee to continue performing the job’s essential duties.
A reasonable accommodation could be allowing for remote work, but if the employee still cannot perform their essential duties, the employer is not required to make provisions to retain the employee. Additionally, an employer can claim undue hardship, which then means the employer is not required to provide reasonable accomodations.
The EEOC advises that “generalized conclusions will not suffice to support a claim of undue hardship.” To demonstrate that an accommodation would cause significant issues, the employer needs to assess several factors, including the:
- Nature and outlay needed to offer the accommodation.
- Financial resources and number of workers at the facility, and the impact on cost and resources at the facility.
- Organization’s financial resources, employment population, size, location, and type of work sites.
- Type of operation and impact on operations.
What About Employees Unwilling or Unable To Get Vaccinated?
During your internal communications with employees about the vaccine, take the time to identify employees who do not intend to get the vaccine, and determine their reasons. Develop the tools to enable employees to communicate their intentions and justification. If the company's decision is to make vaccinations mandatory, be prepared with a process to address exceptions, such as pregnancy or religious objections.
The process should include a reasonable accommodation like remote work, or if that is not feasible, job reassignment. Explore options, and be prepared to present alternatives. You may also consider encouraging workers to get vaccinated by developing new HR initiatives or leveraging existing HR programs, such as educational campaigns, wellness programs, health insurance plan coverage, and paid-time off (PTO).
For example, you may want to schedule a medical expert to address your employees about the vaccine, answer their questions about the vaccine’s effectiveness and potential long-term effects, and help assuage fears through education. If your company mandates the vaccine, you will need to work hard to address attitudes and preconceived notions that may impact each employee’s desire or lack of desire to receive the vaccine. And, if it’s about employees feeling inconvenienced having to receive two rounds of the vaccine, then consider incorporating PTO or another reward element.
An article in The New York Times stated that “some hospitals and long-term care facilities are taking a compromise approach: offering rewards to employees who agree to get vaccinated.” Examples are gift cards and bonuses. Conversely, Norton Healthcare is implementing a disincentive. When unvaccinated employees get sick, they may be required to use regular paid time off rather than paid medical leave.
Although employers can require vaccines, be sure you understand the parameters. The EEOC states that if an employee advises that the vaccine cannot be obtained due to a disability or sincerely held religious beliefs, the Americans with Disabilities Act (ADA) allows the company "to have a qualification standard that includes a requirement that an individual shall not pose a direct threat to the health or safety of individuals in the workplace."
The onus is on the employer to show that an unvaccinated employee does indeed pose a threat. If there is a risk, the employer needs to provide a reasonable accommodation unless that would pose an undue hardship to the employer.
Employee Communication and Education is Critical
The COVID-19 vaccine is contentious, and employees will demand clear communications on the company's policy and process. Develop a communication management plan that includes the following action steps:
- Partner with medical providers or group health insurance providers to gather health education materials for distribution to employees.
- Refer to facts and recommendations announced by the Centers for Disease Control and Prevention (CDC).
- Remind employees that employer-sponsored health plans have to cover the cost of vaccinations with no out-of-pocket expenses as part of preventive care.
- Communicate information that requires or encourages employees to get the vaccine from the perspective of a health emergency, focusing on public health and safety.
- As an alternative to mandatory vaccination, you can tie vaccinations to a wellness program, and offer benefits to incentivize employees to get vaccinated.
Engage Employees in the Process
Try not to exclude the employees from the process. Keep them informed. Schedule announcements at regular intervals to share information. You cannot over-communicate, but choose an effective form of communication.
Emphasize safety culture, well-being, and the importance of safeguarding the workplace and community. You may want to offer paid time off (PTO) for employees to get the first and second shot. Employees may also need PTO to recover from any serious side effects.
Contact NB Solutions for Support
It seems like updates are spinning in the news continuously, and not all the information is transmitted clearly and consistently. NB Business Solutions tracks COVID-19 updates using trusted sources. We stay informed and will continue to alert HR professionals of the impact on staff and operations.
Reach out to our expert team for resources and suggestions on how to protect your employees and support your business. These are difficult times, and we are here to support you.
Specifically, our CEO and HR Principal Tam Nguyen can help your company with human capital management during this challenging time. Armed with 20+ years of experience and knowledge, Tam will help your organization understand how to effectively implement a strategy aligned with compliance and your company’s overall business objectives to sustain business success and employees’ health and well-being.
Consider embedding a qualified HR-as-a-Service partner in your organization to support this current challenge. Contact NB Business Solutions today for support with human capital leadership and strategy.