By Michael Burns, courtesy of SBAM Approved Partner ASE

Last week, Pfizer announced it has a Coronavirus vaccine with a reported 90% efficacy. Shortly following, Moderna announced their vaccine has similar efficacy at 95%. Though they estimate March or April 2021 before it’s widely available, it is clear that the government will be encouraging everyone to vaccinate.

Due to being in certain businesses or industries such as first line healthcare, some employers will require employee vaccination as a condition of employment. But what about employers that do not have an immediate and urgent reason to require inoculation? Employers that are not in a high health risk business may also consider asking employees to get vaccinated for the good of the employees and the business.

Some employees will balk at such a request. A Pew Research Center study conducted in September found 49% of respondents would “definitely or probably not get vaccinated at this time” if a vaccine were available.

Can an employer require the vaccination as a condition of employment or continued employment? Yes – to a point. Is this approach recommended for non-healthcare employers? It depends.

Writing for HR Executive Magazine attorney Andrea Kirshenbaum outlines three approaches for determining whether a workplace vaccination policy is needed:

• Following the EEOC’s suggested approach developed back during the H1N1 virus and recently updated, employers covered by the Americans With Disabilities Act (ADA) should keep their policy limited to just encouraging  employees to get the vaccination rather than requiring it.
• A second approach would be to mandate the vaccine for certain employees but not all. Employees that cannot work remotely, or due to spacing issues cannot social distance accordingly, would be required to vaccinate before returning to work.
• The third approach would be requiring vaccination for all employees unless the employee can state they have a legal exemption due to religion or disability.

Where an employer is requiring vaccination, an employee can state an exemption from the employers’  policy due to religious objections. The Equal Employment Opportunity Commission (EEOC) states “the Commission will define religious practices to include moral or ethical beliefs as to what is right and wrong, which are sincerely held with the strength of religious views.” (EEOC Compliance Manual). In a 2012 Informal Discussion Letter regarding influenza vaccination the EEOC opined that “it is unlikely religious beliefs would be held to incorporate secular philosophical opposition to vaccination.”

It is not recommended that an employee be required to provide a letter from a clergy member to support an employee’s religious exemption request.

For most employers it makes sense to suggest, but not require, employees get vaccinated. In a 9/28/2020 article, Human Resource Executive suggests some approaches to promote and encourage vaccination:

• Encourage employees with multi-channel communications. These messages can be sent via email, text, web, and of course good old hardcopy memo or notice. Keep the information based upon scientific, business, and/or humanitarian reasons. Avoid the political.
• If employers want to make a stronger point, encourage leaders to take the lead with personal commitments and action.
• Though we are already in flu season, start messaging as soon as possible to amplify the message.
• Provide information on where to get the vaccination to make it easier to achieve results.

In another article by Cano, Casciari, Galligan, Grossenbacher, Hecker, and Hill, Top Ten Considerations for Employers When it Comes to Potential COVID-19 Vaccine Programs, the authors suggest:

• Be prepared for fraudulent accommodation requests and foot dragging malingers. Get up to speed on accommodation and leave laws.
• Watch for other compliance issues in the areas of safety and health and labor relations. Employees can file a complaint with MIOSHA saying the employer is endangering them by requiring vaccination or alternatively may complain that an employer is not doing enough by failing to require vaccination. Be prepared to communicate the employer’s position on this. Also watch for employees joining together to protest a vaccine program (or lack thereof). This could be a launching point for an unfair labor practice charge, whether union or non-union.
• Consider rewarding or incentivizing employees such as giving a gift card or offering to pay employees for time taken off to get inoculated.

Be ready for the next major phase of employer COVID virus prevention efforts.