Considerations for Employee Vaccine Programs

February 2021
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With the rollout of new vaccines to turn the tide on the COVID-19 pandemic in 2021, many organizations are considering or planning to mount communications campaigns to encourage employees to get vaccinated.

In December, Gartner conducted a poll that found that 60 percent of human resource executives stated that they are encouraging employees to be vaccinated. At the same time, they said they would not make vaccination a requirement.

Less than one-third of HR executives polled said they believed it is ethical to mandate a COVID-19 vaccine, but only 3 percent said they would actually make proof of vaccination a requirement to return to work.

So, what could go wrong?  Well, if you don’t think it through, a lot.

Nicole Stockey is a partner with the law firm of K&L Gates in Pittsburgh. She counsels that while most employers can require their employees to be vaccinated, mandates can be tricky and present certain legal vulnerabilities.

She said a better option may be to forgo a vaccination requirement or mandate and instead opt to encourage employees to be vaccinated through education and awareness programs.

“If employers elect to impose a vaccination requirement, they should keep in mind that employees can typically seek exemptions and accommodations under Title VII of the Civil Rights Act of 1964 for having a sincerely held religious belief, or under the Americans with Disabilities Act (ADA) if they have a medical condition or disability that makes vaccination unsafe,” said Stockey, who concentrates her practice on commercial litigation, employment litigation and related matters. “In both instances, employers can deny these accommodations if they are unreasonable or cause an undue hardship.”

Avoid peer-pressure strategies.

It’s quite common in workplace communications programs to employ strategies that leverage certain model behaviors from some employees to encourage everyone to follow suit. On the health issue of vaccination, which carries with it certain innate risks, Stockey said that not only is open communication and transparency critical, but that the organization should make it clear it will not tolerate bullying or harassment in any context.

“If employers opt to adopt voluntary vaccination programs, and not vaccination mandates, they should clearly communicate that participation is encouraged, but entirely voluntary,” she added. “Employers may also encourage employee participation through educational programs and may even offer incentives, such as raffles, cash bonuses, extra paid time off, or other benefits for participation in the program. That said, employers should still be mindful of any ERISA [Employee Retirement Income Security Act of 1974] considerations when considering whether to offer certain benefits or incentives.”

Worth noting is that employers should also be aware of the state and federal laws that apply to given work groups, along with any collective bargaining agreements that may be in place for unionized employees.

Employers also need to be aware of agency guidelines, such as those from the Centers for Disease Control and Prevention (CDC), the Occupational Safety and Health Administration (OSHA) and the National Labor Relations Board (NLRB), when considering any vaccination program or initiative.

Ultimately, Stockey said that employers should take into account the industry, specific makeup of the workforce, the workplace environment and culture prior to assuming that an ambitious vaccine campaign should commence.

“Employers should try to get ahead of this issue and create or re-review (as the case may be) their own policies and procedures, given their industry, culture and workforce culture.” 

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