Key Considerations for Workplace COVID-19 Vaccine Policies

In December, the Equal Employment Opportunity Commission (EEOC) clarified that vaccines aren't "medical examinations." The EEOC dealt specifically with the issue of whether vaccines are “medical examinations” under the ADA and also addressed the applicability of various laws affected by the availability of COVID-19 vaccinations, including the ADA, the Genetic Information Nondiscrimination Act (GINA) and Title VII of the Civil Rights Act of 1964 (and, specifically, religious accommodation).

Medical experts say that vaccination is a critical step to a return to normal, and up to 85% of the population must be vaccinated in order to achieve herd immunity. However, while employers can legally require employees to provide proof of vaccination before returning to work and not be in violation of any federal laws, many employers are undecided or still working out their return to work policies.

In a December 2020 Gartner poll, 60% of HR leaders said they would encourage employees to get vaccinated, but wouldn’t require it. Less than one-third of polled HR leaders said they believed it to be ethical to mandate a COVID-19 vaccine, and only 3% said they would require employees to show proof of vaccination to return to the workplace.

The COVID-19 vaccine is deemed safe by the FDA and the CDC. There is scientific evidence since the rollout of the vaccine that risk of transmission is greatly diminished, and the few side effects that have occurred have been minor. The cost of the vaccine is covered, regardless of which health plan an employee has selected. State and local governments have launched programs to cover the cost of the vaccine for uninsured individuals. However, there will still be people who do not want to get vaccinated.

Mandatory Versus Voluntary Vaccination Policies

Many Americans are skeptical of COVID-19 vaccines for a variety of reasons, including wariness over the speed with which pharmaceutical companies developed them. There are major differences between implementing a mandatory vaccination policy and a voluntary vaccination policy.

Mandatory policies trigger accommodation options under the ADA and some legal risk depending on what actions an employer will take if an employee refuses the vaccination. Employers with mandatory policies will have to make some exceptions (medical conditions or pregnancy, religious objections, etc.). The vaccine has not been approved for use in pregnant women and people with certain other medical conditions.

Voluntary policies depend heavily on availability and education for employees, but it gives employers more options on what actions to take if an employee refuses vaccination - for example, moving the employee to a position that does not put them in direct contact with coworkers or customers.

Organizations with essential workers, or those who cannot maintain social distancing, may consider mandatory vaccination programs. Some employers may opt for education and resources that encourage employees to voluntarily receive the vaccine, while others will integrate a vaccine policy into their existing COVID-19 health and safety programs.

For employers who want to launch a vaccine policy, whether mandatory, voluntary, or integrated into your existing COVID-19 policy, it’s important that communication is built into your strategy. Because there is a huge national push on the federal level and the CDC is providing a lot of information for both employers and employees, the information you’ll need to communicate is available.

The two primary questions that you’ll want to ask when developing a policy and scenario planning are:

• Does our strategy for offering the COVID-19 vaccine align with local health regulations and other employment policies, such as collective bargaining agreements?
• What will our policy be for employees who are unable (due to medical or religious reasons) or unwilling to be vaccinated? What accommodations and exceptions policies do we need?

It’s important to consider various scenarios, such as a plan for pregnant employees that removes them from direct contact with customers to ensure their safety, how to handle religious exemptions, and whether or not each group of employees are able to obtain access to the vaccine as it is still being rolled out at levels that vary state by state.

Since most employers do have existing COVID-19 health and safety programs in place, such as contact tracing, compliance and secure data on employee testing, a COVID vaccine policy can become part of your existing program, whether it is mandatory or voluntary. Cisive’s SAFE19, part of its suite of compliance solutions, securely handles the uploading, validation, and compliance reporting on COVID-19 testing, but also immunization data.