A super challenge is on the horizon for employers besides that of the pandemic, economic volatility and civil unrest. That challenge is whether or not employers should mandate the potential COVID vaccination. If you haven’t thought about this yet, now is the time to carefully consider your steps before this hot potato with flames lands squarely in your lap!
As we’ve learned from attorney Barbra Arnold in our recent ROAR Virtual Summit, this issue, along with everything COVID, is very complex and constantly changing.
So sorry, no simplicity here – Implications to consider
Nothing is simple about requiring vaccinations in the workplace. In fact, this is a very complex matter and I would caution any business about leaping into requiring anything before you check in with legal counsel. It’s that serious. Here is why.
From an employment law perspective
Employers will have to understand various provisions within state regulations and/or any collective bargaining agreements (CBA) before making changes. As we’ve seen throughout the pandemic, each state is governed and regulated differently. If you are an employer with collective bargaining agreements, each union contract is also different. Contracts may or may not allow the requiring of a vaccination without bargaining in good faith.
At a federal level we must also look to the federal EEOC for guidance in handling vaccinations in the workplace. In 2009, the EEOC initiated guidance making it possible to require vaccinations but employees with underlying medical conditions should be entitled to an exemption for medical reasons.
Separately, Title VII protects employees with sincerely held faith-based beliefs from being forced to take a vaccination. Accommodations for both the medical and faith-based objections include minimizing interactions with other employees or the general public and examining ways the employee could perform their work without coming into contact with others such as remote work.
In March 2020, the EEOC updated its guidance to allow for COVID related illness to be considered a “direct threat finding” which means that having someone with COVID or symptoms poses a “significant risk or substantial harm” to others in the workplace. This permits employers to put in place certain medical testing measures that the ADA would not typically permit, such as taking temperatures.
However, the update in March of 2020, does not take into account vaccinations, as it was not part of our reality at the time. Which means the EEOC may come out with further guidance regarding mandatory vaccination. But at this point there isn’t any real clear guidance regarding mandatory vaccinations.
Our proactive tip: If a vaccination comes out before the EEOC offers guidance, consult with your legal counsel and proceed cautiously.
From an employee engagement perspective
Mandating a COVID vaccination can blow up in the employers’ face in so many ways. Why? Let’s look at the data. According to a Gallup poll with results based on a July 20 – August 2, 2020 timeframe, 65% said they would get an FDA approved no cost vaccine, whereas 35% said they would not.
There is a myriad of reasons for why people would not be comfortable taking the vaccine. Such as having other prevailing medical reasons, faith-based reasons, or not having any confidence in the safety or effectiveness of the vaccine, and more. The confusing and constant shifting of recommendations from the CDC is not helpful towards bolstering confidence. Another wrench is the underlying concerns of the government stepping on civil liberties.
On the opposing side of this equation are those who feel it is everyone’s due diligence to protect others by wearing masks and getting a vaccine when one is approved. This side of the equation is just as passionate to the point of “mask shaming” those who do not wear a mask in public.
Both sides meeting in the middle could very well amount to an explosive situation and likely to boil over into the workplace. Every industry, company, employee and customer are different and so there will be different reactions.
Our proactive tip: Get to know your workforce well and right now. What will their response be to COVID vaccinations? Are they for or against? Why or why not? Understanding this is critical to developing an effective go-forward plan.
From the public opinion perspective
This consideration can be summed up in one question, “do you know how your customers will feel if your employees are vaccinated or not?” We already know that consumers have shifted their buying to online and curbside pickup service.
Our proactive tip: Get to know your customers and the community in which you serve. Understand their perspectives concerning COVID and a potential vaccine. Every geographic location is different.
Once the vaccine is out, I anticipate a great deal of pressure will mount upon the employer to require vaccinations, no matter how small or big the company. Savvy business leaders will understand there is a big divide between “recommended” and “required” and will get ahead of the curve. They will understand their legal options and work to deeply understand their workforce and customer views on this issue. From there it is those level-headed forward-thinking leaders who will develop a smart plan based on their people needs, and not on internal or external politics.
Sample balanced mandatory vaccination approach
Working as an experienced executive in healthcare, the industry has had in place procedures for mandatory influenza vaccinations for quite some time. The big difference is that the flu is only for a season, whereas COVID spans across many seasons. Any policy will have to be in place for quite some time. This will give a really good launching point in how to balance health and safety with employee medical and faith-based objections.
This is how the mandatory influenza policies generally work:
- Vaccinations are always fully paid for by the employer.
- Employees are to either receive a vaccination, provide documentation that they have already received one, or they are required to wear a mask throughout the flu season.
- Exceptions are administered the following ways:
- For medial exception requests: the employee must provide documentation from their doctor stating they cannot get a vaccine for medical purposes, within a specified timeline.
- For faith-based exception requests: employees must provide documentation indicating their closely held beliefs. It can come in the form of an essay explaining scripture or a letter from a clergy of their choice. Admittedly this is a little tougher to verify than the medical exception. No human being can judge someone’s heart and whether or not they have a deeply held belief. In my experience, so long as employees met their administrative obligation in the required timeline more often than not the exemption is approved.
- If employees do not have an approved exemption or do not produce documentation, of a vaccination within stated required timeframes, they are subject to disciplinary action.
This of course may vary depending on your organization’s culture and any regulatory provisions as described above. In addition, there are several process questions to navigate through such as would this apply to your remote workforce? Again, I can’t emphasize enough that objective legal counsel is your best friend before implementing anything.
Ask us about our Hummingbird Employee Response service!
This service package includes:
- Assess: We will conduct an employee pulse survey to gauge their sentiments in all things COVID including potential vaccinations or on any other topic
- Engage: Help you establish an internal communication strategy in partnership with leaders
- Drive Positive Change: We will provide a leadership and workplace training session
If interested in us helping your business, just drop me a line at Tresha@hrcsuite.com.
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