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Vaccine Verification: What Employers Need to Know About Requiring Vaccines

February 23, 2021 | By Jeramy Gordon

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With widespread COVID-19 vaccinations underway, there’s finally a glimmer of light at the end of the long pandemic tunnel. But a new concern for employers has arisen: Vaccine Verification.

The approval and swift distribution of the vaccine is a critical step in battling a disease that’s taken the lives of thousands of people around the world and brought healthy economies to a near standstill.

But it’s just a step. Before the world can even begin to approach anything that feels “normal” again, questions about health, work, the vaccine, and compliance need to be addressed. While public confidence in the vaccine is high and improving, a study conducted by the Pew Research Center found the following:

  • 60% of Americans say they will definitely get a coronavirus vaccine.
  • Of the remaining 40% who are hesitant about the vaccine, roughly 18% are open to the possibility of getting the vaccine once more information is available.
  • 21% of US adults do not intend to get the vaccine even as more info and data become available.

With 4 in 10 Americans opting to “wait and see” before getting vaccinated for COVID-19, employers wishing to open their businesses and invite employees and customers back in have to make some potentially thorny decisions about their policies regarding health and the COVID-19 vaccine.

In this article, we’ll take a look at the following:

  • Is it legal to require employees to be vaccinated?
  • What are the pros and cons of requiring the vaccination?
  • What can you do now to get ready?

Is it legal to require employees to be vaccinated?

For the most part, the Americans with Disabilities Act (ADA) prohibits employers from requiring vaccinations as a condition of employment. However, COVID-19 is a special case because the virus is considered to be a “direct threat.”

The most recent guidelines from the US Equal Employment Opportunity Commission (EEOC) state that employers are allowed to set requirements that prevent people from posing a “direct threat” to the health and safety of other individuals in the workplace. According to the CDC, COVID-19 poses a “direct threat:”

“Based on guidance of the CDC and public health authorities as of March 2020, the COVID-19 pandemic meets the direct threat standard.  The CDC and public health authorities have acknowledged community spread of COVID-19…[t]hese facts manifestly support a finding that a significant risk of substantial harm would be posed by having someone with COVID-19, or symptoms of it, present in the workplace at the current time.”

This legal precedent was set in 2009 during the H1N1 crisis and has been updated to include COVID-19. However, it’s important to know that, as of this writing, the EEOC has not issued vaccination guidelines specific to the COVID-19 vaccines.

What are the pros and cons of requiring the vaccination?

While it may be legal to require employees to be vaccinated, it’s important to weigh the benefits and costs of a vaccine verification policy before proceeding.

Pros:
  • Reduced instances of infection. If everyone in your workplace is vaccinated, it’s highly unlikely that anyone will get sick as a result of interactions with your staff.
  • Improved employee morale. Employees who feel safe from infection will have an easier time returning to work.
  • Reduced risk of tort claims. Mandating vaccines reduces the risk of a lawsuit from an employee or customer claiming they became infected with COVID as a result of your negligent vaccination policy.
Cons:
  • Increased administrative burdens. A vaccine mandate increases administrative costs in a variety of ways. First, developing your vaccination policy will take considerable time and resources. Second, employee objections to your policy will require carefully constructed administrative responses. And third, your management and HR teams will need to spend time developing reasonable accommodations for those employees who cannot be legally required to get the vaccine.
  • More difficult collective bargaining agreements. A vaccine mandate will surely impact your position in collective bargaining agreements.
  • Decreased employee morale. Yes, safer employees are happier employees, but only if everyone wanted the vaccine. Employees who are unwilling to get the vaccine will require you to make difficult decisions about terminations, which will have a deleterious effect on overall morale.
  • Lawsuits. Even though your vaccine verification policy is legal, you can still expect to experience legal claims about civil rights violations.

What can you do now to get ready?

While we don’t yet know when pandemic restrictions will be lifted, we do know that a return to work is coming. Here are four things you can do to be prepared for upcoming issues surrounding vaccine vaccinations:

  • Start Planning Today

It’s a good idea to assess your employees and your businesses; discovering your community’s needs and attitudes about health and vaccines will facilitate your planning and your policies. Define your non-negotiables and communicate them clearly.

  • Build Trust

Communicating your policy is a good first step towards building trust, but your efforts shouldn’t stop there. Leading by example is also important. If you’re going to require the vaccine, get yours out in the open or share photos. Talk about the vaccine and provide opportunities for education. In addition, foster an environment of tolerance. Set political or other controversial discussions aside and opt instead for an open dialogue that includes information about why vaccines are essential for your business and your employees.

  • Anticipate Difficulties

One thing is certain: whatever you decide about vaccines, you’re going to get pushback from your employees. If you mandate vaccines, you’re likely to encounter individuals who claim a civil rights violation. If you don’t mandate them, you’ll have some employees who refuse to come to work. There’s no easy answer here, so begin preparing for these difficult conversations today.

  • Bring in the Lawyers

This past year has been tough on your business. The very last thing you need is a lawsuit about your vaccine verification policy to hit as you’re trying to get back on your feet. Just as you’ve used legal advice to help you construct a solid background check policy, investing in sound legal advice upfront as you construct your COVID vaccination policy will protect against expensive legal battles down the road.

Take the Time to Get it Right

The pandemic has taken everyone into uncharted territory. You’ve likely never had to decide whether to mandate a vaccine because of a direct threat to the health and safety of your workforce. Take the time to get this decision right—right for you, your business, and the customers you serve.

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