COVID-19 and Vaccines: Can You Mandate That Employees Get Them?

Late last year, the first batches of COVID-19 vaccines became available in the U.S. While those being inoculated now are doctors, nurses and other frontline workers, in the coming weeks and months the vaccine will be available to all members of the public.

This has many employers wondering: Can I mandate my employees take a vaccine before returning back to work? And, if they refuse, what kind of rights do I have?

We sat down with Claudia St. John, President and CEO of Affinity HR Inc., to discuss what employers need to know when it comes to vaccinating employees and why they should start planning for it now.

BSCAI: Do you think it's best practice for companies to mandate or strongly suggested that their employees to get vaccinated?

Claudia St. John: It's going to be a while before typical essential or non-essential businesses are faced with this with the question. I think what I want folks to know about is that regardless of their philosophy at this point it's very clear from the EEOC, the Equal Employment Opportunity Commission.

Employers are within their right to require a vaccination. As a result, as a contingency to either come to work or return to work. Public health officials have pretty much said that employer based vaccinations are going to be a critical part of our strategy for combating this, and certainly employers know that covert has the potential to really disrupt their business operations. So it is within any employers right to require that employees get a vaccine that said they have to provide a reasonable accommodation for those who cannot take a vaccine, either because of a disability or medical condition or because if you have a bonafide strongly held religious belief under Title VII of the Civil Rights Act that allows them discretion in that area. So they have to provide reasonable accommodation. But if they want to, if they want to require a vaccine their within their right to do so.

BSCAI: In recent news articles, there have been reports of some people rejecting the vaccines because of personal feelings about it or because of a disability they might have. I'm an employer now saying ‘I'm going to make this policy.’ I know I have it within my rights to make this policy, but I'm going to make those reasonable accommodations and then it comes time to actually roll it out. And there are people who don't necessarily fall under that umbrella of they have a disability or a medical issue or a strong religious belief, they just don't want it. How do I deal with that?

CSJ: You can, as a result of their decision not to want to take that vaccine, you can not hire them or you can fire. The EEOC has said because it is such a critical public health emergency that it is the employer’s right to say we will make the policy we want. We need to maintain a safe workplace, and therefore we will require everybody that can take the vaccine. If they choose not to take a vaccine for whatever non-protected right then it's an employer's discretion to not hire them or to fire them.

BSCAI:  How important is it to underscore that ability to say, ‘If you don't get this and you don't have a protective right, we have the right to to fire you?’

CSJ: This is an opportunity for us to prepare and plan in advance how we're going to respond to it. So whatever your decision as an employer is on vaccines, I would encourage you to start not necessarily with the stick, but with the carrot, and that carrot could sound something like ‘We care about you. We care about your families we care about our communities and we care about our workforce. As a result, we are going to as it becomes available.’ Encourage employees to take the vaccines, starting with you, the owner: the leader, top head of the company.

We hope we don't have to have a point to reach a point where we have to make employment decisions based on someone's willingness or lack of willingness to take a vaccine. But if we have to we are within our legal right to make decisions about who we retain.

BSCAI: If I’m an employer who has no policy that requires my employees to get the vaccine, what kind of ramifications are there from an HR perspective if you completely ignore it and just let people come back and work without requiring that vaccine?

CSJ: I don't think there are any necessary legal ramifications unless you maintain a workforce a workplace that ignores the risk of COVID-19 and its and its effect, and your employees come to work and get sick at work. There has been all along a concern about employer liability by returning employees to work without providing sufficient protections for them.

A lot of those concerns have not been realized. We have not seen a flood of liability lawsuits by employees who have been infected as a result of work. It is also presumed that if employees are infected at work, it would be covered by worker’s compensation and therefore they can't sue. So whether or not the risk of facing a liability lawsuit is as realistic as just the fear of it.

BSCAI: If you could recommend any piece of advice for HR professionals who might be within these organizations, what would you say would be the number one thing you need to be thinking about today?

CSJ: The number one thing is: are you going to require it or not. And if you're not going to require it, what's your philosophy going to be? You're going to need to provide reasonable accommodation, which means you're going to need to be able to give employees the opportunity to request a reasonable accommodation without violating their health rights their right to privacy of their own medical condition.

So you're going to need to figure out a way to assess a reasonable accommodation legally under the ADA Americans with Disabilities Act. You also need to think through things such as: Are you going to allow them to go and get vaccinated on company time? Are you going to pay for the vaccines? Have you seen whether your health insurance will cover the cost of the vaccines?

Listen to the full conversation below.