SimplyHR | Employment & Labor Blog 

For example, under the ADA, employers have the right to maintain a safe working environment to ensure the safety of all employees. In the event an employee cannot be vaccinated because of a medical condition, the employer must establish that an unvaccinated employee poses a “direct threat” to other employees that could not be eliminated by reasonable accommodation. If an employee has a sincerely held religious belief that prevents the employee from receiving the vaccine, the employer must provide a reasonable accommodation for the religious belief under Title VII, unless the accommodation poses more than a “de minimus” cost or burden, according to EEOC guidance. A copy of the EEOC publication may be obtained by contacting the EEOC at eeoc@updates.eeoc.gov.

A major issue for some employers will be whether to mandate the vaccination of employees. For non-union employees, private companies generally have the right to impose a vaccine mandate, and employers generally have the right to terminate an employee for the failure to take the vaccine. Employers can fire “at will” employees for any legal reason. A Gallup poll reported in early December disclosed that approximately 63 percent of Americans would be willing to take a COVID-19 vaccine that is approved by the federal Food and Drug Administration.  It may be difficult to require a COVID-19 vaccine if there is large-scale employee resistance. For example, such a mandate would be difficult to enforce if 30 percent of a workforce elected not to take the COVID-19 vaccine. Because health care employees and residents and staff of long-term care facilities are being provided with the first opportunities to take the vaccine, there may be more acceptance by employees after nurses, doctors and other personnel take the vaccine without experiencing side effects.

For those employers that would like to make this a voluntary vaccination program, the following strategies may be considered:

1. Lead by example. When drug and alcohol policies were introduced many years ago by employers, key executives led the way by first being tested.
2. Reach out to your insurance carrier to determine whether employees will be asked to cover any administrative expenses of administering the vaccine. Based upon the responses from your insurance carrier, an employer could elect to cover any related costs of the vaccine. In addition, some experts have suggested such incentives as gift cards, paid time off to receive the vaccine, flexible work schedules, etc.

   On the other hand, an article appeared in the December 15, 2020, New York Times titled “Why Paying People to Be Vaccinated Could Backfire.” The article by George Loewenstein and Cynthia Cryder provided as follows:

   “The approval of the first Covid-19 vaccine in the United States was hailed over the weekend as the beginning of the end of the pandemic. But the road between delivering the first doses and widespread vaccination at rates that will arrest the spread of coronavirus is far from straightforward. Besides the logistical challenges of distributing the vaccine, people must also be willing to take it. A new survey has found that more than a quarter of Americans are hesitant. …

   “People are also likely to infer from payment that the vaccine would be risky. In our research with Kevin Volpp and Alex London, we found that people naturally assume that payments signal risk.”

3. Introduce the vaccine program in a similar manner to how many employers encourage employees to receive a flu shot each year.

4. Establish a management team for the administration of the vaccine and to provide legal updates to employees.

For a unionized employer, it is essential to review the terms of its collective bargaining agreement as to whether a management rights clause provides the company the right to require employees to submit to a COVID-19 vaccine. If there are no provisions within the collective bargaining agreement permitting vaccines, then employers must negotiate with the union representative before imposing any vaccine mandates. (Since an employer must comply with the technical requirements of the National Labor Relations Board before enacting mandatory vaccine use, we suggest that you check with labor counsel so as to comply with federal law.) Generally, outside the health care industry, collective bargaining agreement will not cover vaccines. The Service Employees International Union has commenced bargaining over COVID-19 mandates with health care employers. SEIU President Mary Kay Henry stated, “We are very concerned about, obviously, getting health care workers the highest level of protection.”

We suggest each employer evaluate its business needs in making a determination as to possible vaccine mandates. Many employers may decide it is better to encourage vaccination rather than make it a condition of employment. On the other hand, some employers where employees have close contact with customers (i.e. restaurants and department stores) may reach a different conclusion.