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New Vaccines Raise New Questions for Employers

For employers, a new year brings new hope that life will return to normal soon. Finally, in 2021, there’s reason for optimism on that score. To begin with, Congress has passed an appropriations bill that includes a fresh stimulus package. Of course, most promising of all is the roll-out of two Covid-19 vaccines, and the appearance of additional candidates on the horizon.

The arrival of these vaccines signals a new (and, knock on wood, final) phase of the pandemic. That does not mean, however, that companies can relax and wait for their Covid-related worries to end. Instead, employers should actively consider new questions that the existence of effective vaccines will bring to their workplaces, and develop policies to address them. Specifically, they should be thinking about the most obvious issues: can or should they mandate their employees received the Covid-19 vaccine?

We previously addressed this issue and concluded that an employer probably could (with a few exceptions discussed below). Since then, the EEOC has issued additional guidance confirming our conclusion.

Of course, just because you can do something doesn’t necessarily mean you should. And in this case, there’s good reason for employers to hold off a strict mandate. For one thing, it would be premature. At this point in the vaccine rollout, most employees couldn’t get a vaccine if they tried (with the possible exception of certain medical workers). Any employer that tries to implement a vaccine mandate in the first few months of 2021 will be creating their own worker shortage.

Even after the vaccine is available to all who want it (the sooner the better), employers should still carefully consider whether it is appropriate to do so. There is no one-size-fits-all answer to this question. Instead, it should depend on a number of factors specific to each employer considering it, including:

  • How many employees they have,
  • The amount of interaction between them,
  • The workplace layout,
  • The workplace culture,
  • The industry they are in,
  • The amount of interaction their workers have with the public, and
  • Whether the employer serves vulnerable population.

The mandate may make sense in the healthcare field or a nursing home for example, but it may not be reasonable at a small accounting firm where employees have individual offices and little contact with the public.

Employers should also consider the pushback they may get once they mandate something. As we’ve seen in the pandemic and other contexts, curtailing individual liberty can inspire vehement opposition. Instead, in most cases, employers that wish to mandate the vaccine are, instead, better off strongly encouraging it. They can and should bolster their case by educating employees on the reasoning behind the request, covering the cost of vaccines, or even providing incentives to get them. That carrot-oriented approach is likely to earn a greater degree of compliance—and far less conflict—than a mandate.

If employer nonetheless decides to require vaccines, even then it cannot impose a black-and-white rule in all cases. It still must make limited exceptions for individuals with sincerely held religious beliefs that prevent them from getting vaccinated, and those with an underlying disability for whom vaccinations present a health risk. The analysis is a little different in each case.

An employee who seeks a religious accommodation for a sincerely held religious belief must be granted a reasonable accommodation (like, for instance, the ability to work from home) unless it would cause an “undue hardship” on the business. What circumstances create an undue hardship is a highly fact-specific inquiry—one that lawyers can (and do) argue about extensively.

For employees with a disability, meanwhile, the employer must undertake a two-step analysis. First, they have to ask themselves if the unvaccinated employee poses a “direct threat” to their own health or the health of others. That, too, is a fact-specific inquiry, and the EEOC provides a whole list of factors to consider. If the employee does not present a “direct threat,” they would have a right to stay in their job without a vaccination.

If they do present a direct threat, however, the employer would proceed to the second step and consider whether a reasonable accommodation is available. If so, the employer must provide that accommodation. If not, the employer could terminate the employee.

These are complex decisions and should not be entered into lightly. And whatever decision an employer makes in any individual case, they should apply it consistently and deliberately across all situations.

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