As COVID-19 vaccinations roll out and restrictions lift, workplaces are beginning to transition from work-from-home to in-person; however, many employees are hesitant to return to the office. In order to keep their businesses and employees safe and healthy, many employers are contemplating whether they should mandate workplace vaccinations as offices open up. Today, we discuss what employers need to know about mandating COVID-19 vaccinations in the workplace.

COVID-19 Vaccination Overview

There are currently four COVID-19 vaccines available in the USA: Pfizer-BioNTech, Moderna, Novavax COVID-19, and Johnson & Johnson. Both Pfizer-BioNTech and Moderna are two-dose mRNA vaccines that have become available to the public at a large scale with an efficacy rate of approximately 95%. The main distinction between the Pfizer-BioNTech and Moderna vaccines and the Novavax vaccine is that the first two use mRNA created in a laboratory to teach our cells how to make a protein that triggers an immune response inside our bodies while the Novavax vaccine is a protein subunit vaccine which pieces (proteins) of the virus that causes COVID-19 and is around 90% efficient against mild, moderate, and severe disease. Johnson & Johnson is a one-dose viral-vector vaccine that has an efficacy rate of 66.3% and is available for individuals aged 18 and above.

Although there have been some medical issues tied to the vaccines, including potential allergic reactions and certain contraindications, the known and potential benefits of these COVID-19 vaccines greatly outweigh the known and potential risks. Given this, CDC continues to recommend COVID-19 vaccination for all individuals aged 12 and above.

EEOC Updated Guidelines on Workplace Vaccinations

On May 28th, 2021, the U.S Equal Employment Opportunity Commission (EEOC) updated its guidance and FAQs on workplace COVID-19 vaccinations. According to its updated guidelines, employers may request proof of vaccination status and offer incentives to encourage employees to receive the vaccine.

Below are some of the guidelines employers should be aware of:

• Federal EEO laws do not prevent an employer from requiring all employees physically entering the workplace to be vaccinated for COVID-19, so long as employers comply with the reasonable accommodation provisions of the ADA and Title VII of the Civil Rights Act of 1964 as well as other EEO considerations.
• Federal EEO laws do not prevent or limit employers from offering incentives to employees to voluntarily provide documentation or other confirmation of vaccination obtained from a third party (not the employer) in the community. If employers choose to obtain vaccination information from their employees, employers must keep vaccination information confidential pursuant to the ADA.
• Employers that are administering vaccines to their employees may offer incentives for employees to be vaccinated, as long as the incentives are not coercive.
• Employers may provide employees and their family members with information to educate them about COVID-19 vaccines and raise awareness about the benefits of vaccination.
• An employee who does not get vaccinated due to a disability covered by the ADA or a sincerely held religious belief, practice, or observance covered by Title VII may be entitled to a reasonable accommodation that does not pose an undue hardship on the operation of the employer’s business.
• If an employer or its agent offers voluntary vaccinations to employees, the employer must comply with federal employment nondiscrimination laws.
• Under the ADA, an employer may require an individual with a disability to meet a qualification standard applied to all employees, such as a safety-related standard requiring COVID-19 vaccination, if the standard is job-related and consistent with business necessity.

Should You Mandate Workplace Vaccinations?

As of now, there is no clear answer to this question. In light of the updated EEOC guidelines, it is ultimately up to you as the employer on whether you want to mandate vaccines or not. If you do decide to mandate vaccines, make sure you consult with your employment lawyer to ensure compliance. As of April 3, 2023, vaccines will no longer be required for healthcare workers, including those who work in adult and direct care settings, correctional facilities, and detention centers.

What This Means For California Employers

The updated EEOC guidelines and FAQs about COVID-19 workplace vaccination are extremely significant to employers, not only in California but nationwide.

Mandating vaccination programs may give rise to intangible employee morale and relation issues that should be addressed as you contemplate implementing a vaccination protocol. Keep in mind that some employees may face greater barriers to receiving a COVID-19 vaccination than others and may be more likely to be negatively affected by a vaccine requirement. When implementing a new vaccination program, employers should consider COVID fatigue, financial insecurity, lasting health implications of the virus or the vaccine, changed family and living circumstances, political polarization, and misinformation about the virus and vaccine. Additionally, demographics will influence willingness to get the vaccine, so any scheme you adopt as an employer must consider all these factors.

We recommend that employers take action to prepare for future vaccination programs by:

• Engaging and supporting the public health effort;
• Assessing how your workforce will fit into the phased vaccination plans;
• Determining costs associated with vaccinations;
• Considering accounting for vaccination time as hours worked;
• Continuing existing COVID-19 protocols and prepare for additional guidance; and
• Developing positive, accurate, and fact-based messaging.

Key Takeaways

As you consider implementing a recommended or mandatory vaccine program in the near future, it is important to engage with your employees to make your program as successful as possible. Employers should assume that employees will have their own reservations in returning to work. In this vein, businesses should focus on fact-based messaging, which will be essential in counteracting that hesitation. Employers who consider the obstacles and logistical challenges in advance by creating an action plan that will be able to overcome these challenges when the time comes.

The updated EEOC guidelines on workplace vaccinations may be complex; however, it is important that these laws are understood and properly followed by employers. If you need assistance navigating COVID-19 vaccinations in the workplace, please contact Hackler Flynn & Associates.

DISCLAIMER: Content within this post should not be considered legal advice and is for informational purposes only. Communications made through this post do not create an attorney-client relationship. Hackler Flynn & Associates is not responsible for any content that you may access from third-party resources that may be accessed through or linked to this post. Hackler Flynn & Associates is only licensed to practice in California.