February 9, 2021

Can I Make Vaccines Mandatory for My Employees?

doctor injects healthcare worker with vaccine

 
With Covid vaccines now being distributed to priority individuals across the U.S., it is as important as ever that employers understand their rights and obligations surrounding vaccines.

Of course, everyone is anxious to return to “business as usual” as soon as possible, so it’s no surprise that the question on every employer’s mind right now is “Can I require my employees to get the COVID-19 vaccine?”

Ultimately, the answer to this question isn’t as much about what you can do, but rather what you should do. While employers can require vaccines — whether a Covid vaccine or a flu shot — in most cities/states, the potential repercussions, both legally and practically, are severe enough that you definitely want to think twice before enforcing this type of policy.

To help you make an informed determination about how best to handle the subject of the Covid vaccine with your employees, we answer some of the most common vaccine-related questions we’re hearing in the CEDR HR Solution Center below.

 

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Any news on the rules for the Covid vaccine?

Current guidance on how employers should handle the COVID-19 vaccine falls in line with existing guidance around the flu vaccine. You are able to administer vaccines at the workplace, ask for proof of vaccination, and even mandate vaccines. However, there is substantial risk in making a vaccine mandatory, and it is unlikely you could let someone go for not getting vaccinated. 

If you are a CEDR Member, contact us before taking any action against an employee who doesn’t get the vaccine, or to discuss any vaccine-related questions you may have.

If you are not a CEDR Member, you can crowdsource answers to any questions you may have from CEDR’s HR experts + 9000 of your peers and colleagues in our private, professional Facebook Group, HR Base Camp.

From the ADA: 

 
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Is it mandatory that I get my team vaccinated?

At this time, we are not aware of any federal or state requirements to mandate the COVID vaccine in the workplace. Our Compliance Team is keeping a close eye on developments surrounding the vaccine to see if any potential changes in recommendations arise that apply to employment regulations. We’ll keep you posted if anything changes. 
 
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Can I require my employees to get the vaccine?

You can technically require employees to get the COVID vaccine without violating federal employment discrimination laws. However, this does not actually mean you can freely let an employee go if they don’t get vaccinated. We recommend that you encourage employees to obtain the vaccine, rather than tie it to an employment policy. 

Even with a “mandatory vaccine” policy, you need to account for employees potentially declining the vaccines due to sincerely-held religious beliefs or medical concerns. If someone raises that type of concern, you need to look at whether you can accommodate having an unvaccinated person in the workplace. 

We talk more in depth about accommodations and potential reasons why employees could exempt themselves from a vaccine mandate later in this blog.

Ultimately, however, we believe you’d be hard pressed to show that getting the vaccine is an absolute requirement to be able to work at your business. The fact that your own and thousands of other businesses have been open during the pandemic in the absence of vaccines, the data showing that PPE can be quite effective, and the fact that you can regularly expect patients/customers to be there even if unvaccinated, would go against any claim that it’s too dangerous for an employee to refuse the vaccine. 

From the ADA: 

 
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Do I have to pay for employees to get the vaccine or for the time they spend getting vaccinated? Should I?

The answer to this question hinges on whether or not you are requiring your employees to be vaccinated as a condition of continued employment.
 

If you are not requiring the vaccine:

If you are not requiring your employees to get vaccinated as a condition of their employment and are allowing individuals to opt out of vaccination you do not need to pay for their vaccine to be administered or for any time off they might need to either get the shot(s) or to recover from any potential side effects resulting from the vaccine, other than allowing them to use paid time off in accordance with your policies. 

You will likely want to offer to pay for your team to get vaccinated, though, as a means of encouraging them to get vaccinated and to make it as easy as possible for them to get a vaccine once it is made available to them.
 

If you are requiring the vaccine:

If you are requiring your employees to get a Covid vaccine as a condition of their continued employment with your business then you will need to pay for any costs your employees incur associated with getting the vaccine, as well as for the time they spend getting vaccinated. 

Additionally, any adverse effects an employee experiences as a result of getting a mandatory vaccine will likely be compensable under your workers’ compensation insurance. You will also want to consider offering paid time off to recover from side effects of the vaccine as a matter of attending to employee morale.

From the ADA: 

 
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So what should I do to motivate my employees to get a Covid vaccine?

For most employers, the right answer to this question is likely in line with EEOC guidance on this topic: you should consider simply encouraging employees to get the flu and COVID vaccines rather than requiring them to get vaccinated.
 

How do I effectively encourage my employees to get vaccinated?

There are a number of things you can do as an office manager to combat vaccine skepticism and encourage vaccination of your team members without requiring them to get the shot. Here are a few ideas:
 

Educate Your Team

Inform your employees about the importance of being vaccinated and the safety of the vaccine during team meetings, and provide them with convenient ways to get more information, should they need it. The CDC has a helpful page on Talking to Recipients about COVID-19 Vaccines here. 
 

Lead By Example

The best way to illustrate a behavior you would like to see from your team is by modeling that behavior from the top down. 

Talk openly about your plans to get vaccinated. Take photos or videos of yourself and your doctors getting vaccinated, then send them in an email to your entire team or post them on your company’s social media channels. 

The more your team members see individuals in their inner circle getting vaccinated safely and moving on with their lives, the more the stigma surrounding the vaccine will diminish, which will make your skeptical employees more inclined to get vaccinated themselves.
 

Set Up a Clinic at Your Office

One of the best ways to incentivize vaccinations for your employees is to make it as easy and affordable for them to get a vaccine as possible. The CDC has guidance on how to host a vaccination clinic and how to administer vaccines.  

This is likely to be among the most difficult options to implement, however, due to the limited availability of Covid vaccines at this time.

If your employees continue to refuse the flu vaccine after it is made available to them, the CDC provides a vaccine declination form for healthcare workers. We are watching to see if the CDC puts out a similar from specific to the Covid vaccine.  
 
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Can I give my employees an incentive to get the vaccine?

We’ve had several Solution Center Members ask us about whether or not they should tie vaccination to a financial incentive at their offices by, say, offering $200 to employees who get a vaccine. While we understand why this might seem like a good option to many employers, we recommend against doing so.

The problem here again comes back to those employees who have legitimate medical or religious reasons that prevent them from getting vaccinated. Where offering a financial incentive might be enough to coax some skeptics to get a vaccine, it could be perceived as discriminatory by those who are unable to get vaccinated. 

There are also some legal questions about the permissible monetary value of such incentives and practical considerations related to accommodating employees who are unable to get the vaccine that make it inadvisable for employers to tie a financial incentive to vaccination.
 
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What’s wrong with just requiring the vaccine?

To begin with, there are some cities and states that prohibit mandatory vaccinations in some situations, so you should check your local laws first. These laws generally apply to hospital workers and either require them to have certain vaccinations, prohibit the employer from requiring vaccinations, or require the employer to offer free vaccinations. To help with this research, here is a list of state immunization laws for hospital workers created by the CDC. 

There are also some federal laws that make mandatory vaccinations tricky.  Both the Americans with Disabilities Act (ADA) and Title VII of the Civil Rights Act of 1964 (Title VII) provide protections for employees who are adverse to being vaccinated. They apply to employers with 15 or more employees, but many states have similar laws that apply to smaller employers.   

Under the ADA, employees have a right to an exemption if they have a disability that prevents them from getting immunized. Similarly, under Title VII, an employee with a sincerely held religious belief against immunizations is entitled to a reasonable accommodation.  

By requiring vaccinations, you may end up forcing an employee to tell you about a medical or religious issue that you may not otherwise have any reason to know about. This just adds extra, unnecessary layers of protection for the employee in this situation.  

The way this usually plays out is that an employee will say that they have an immune deficiency or allergy that prevents them from being vaccinated, or that they are part of the Church of Christ, Scientist or the Dutch Reformed Church (the two religious groups in the US that openly discourage vaccination).  

When an employee presents this type of issue with getting a vaccine, most employers simply note that in their records and move on. However, as a healthcare employer, you may have heightened concerns around the risks unvaccinated employees pose in the office. 

If this is the case, you can’t simply turn around and fire them or force a vaccine on them. Because they are raising issues protected by law, you need to engage in an interactive process with these employees to determine whether there is a reasonable accommodation you can provide. 

 
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You are able to ask the employee to verify their need for an exemption from the vaccination requirement, most likely with a letter from their church leader or doctor. Next, you will want to determine if there’s an alternative way of protecting against the flu for this employee. 

Common solutions include having the employee wear a mask or other PPE while working with patients to help minimize the risk of spreading the virus. During the COVID-19 pandemic, you’re likely already doing this in your practice. In other cases, particularly if there isn’t appropriate PPE available or if you work with high-risk patients, you could make a change in that employee’s job duties.

We highly recommend looking at these alternative solutions. Otherwise, your last remaining option may be to terminate their employment, but that is extremely risky to do when the employee has raised a medical or religious issue. You can only legally decline to accommodate and, instead, terminate employment if you can show that doing anything else would cause a “direct threat” to others and pose an “undue hardship” on the company.  

Since you have been open and seeing patients for months without your team being vaccinated, it would be quite a challenge to prove that suddenly an employee being unvaccinated isn’t something you can handle. This is particularly so in the healthcare industry, where it’s customary to wear some type of PPE anyway and you will regularly be seeing patients who are not vaccinated themselves.

As you might imagine, establishing an undue hardship is a murky legal endeavor that can lead to years of litigation, even when it’s done properly. It’s best to avoid backing yourself into this corner, if at all possible. 

Another way this whole process can easily become even more complicated is by inviting unwanted discussions about whether or not people “believe in” or support vaccines. Absent a medical or religious reason for those concerns, those beliefs aren’t protected by law. 

That being said, it’s not a can of worms you want to open at work. Not only are these discussions controversial and distracting but, when mixed with a mandatory vaccine policy, they could become protected under the National Labor Relations Act, a law that protects an employee’s right to discuss workplace conditions with coworkers. 
 
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Hospitals require employees to get certain vaccines why shouldn’t I mandate vaccines for my team?

Hospitals and other large healthcare facilities are typically subject to their own set of state laws that don’t apply to smaller facilities. This may include mandates that hospital employees stay current on certain vaccinations.

It may also be the case that employees in these facilities are simply strongly encouraged — not required — to get certain vaccines. And the persistence of exposure to pathogens in hospitals may serve as enough motivation for those employees to choose to get vaccinated, whether or not it is legally required of them.
 
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How do I document that certain employees aren’t getting the vaccine?

At this time, we are not aware of any federal or state requirements to mandate the COVID vaccine in the workplace. Therefore, from an HR perspective, you don’t really need to have records of whether or not an employee has been vaccinated. 

We are watching to see if the CDC puts out a form for healthcare employees to fill out when declining the vaccine, similar to what they have for the flu vaccine

If you would like to have a record, then you could simply notate vaccine refusal for your own records. It can be as simple as adding a note to their file that they were offered but declined the vaccine. 

You could ask the employee to put their decision in writing for you, but you want to be careful not to inadvertently elicit more information than you need. For example, the employee may feel they need to substantiate their reasoning and provide you details about a medical condition that you otherwise didn’t need to know about. 

From the ADA: 

 
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Should employees who refuse the vaccine sign a liability waiver?

It’s important to understand that an employee declining the vaccine doesn’t change anything about your liability. We are getting many requests for some type of a “waiver” stating that the practice isn’t liable if the employee declines the vaccine and then gets the virus. We would not expect any agreement to that effect to hold up.  

An employee can’t waive their right to a safe workplace. Any type of liability waiver in that regard would actually become evidence that you knew your workplace was unsafe. 

If someone gets COVID-19 and believes they contracted it from work, they can file for coverage under your workers’ compensation policy. Your insurance company will then take up the issue. Employees can’t typically get WC coverage for influenza as it’s too hard to track where it was contracted, and we expect that’s the approach insurance carriers in most states will try to take with COVID as well. 
 
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If an employee doesn’t get vaccinated and then gets Covid, do I still have to give them paid time off?

If you don’t offer any paid time off, then their time off can be unpaid — unless there’s a state or local law mandating paid time. 

If an employee has accrued paid time off (vacation, sick, PTO) available to them, you really can’t stop them from using those benefits. Many, if not all, states would consider this to be the same as withholding wages. 

If the employee is sick, and under normal circumstances they’d be able to use their paid time off to cover their absence, then they should continue to be able to do that even if they decline the vaccine. 

 

Do I have to let them use FFCRA if they don’t get the vaccine?

If an employee missed work due to COVID-19 related reasons, the Families First Coronavirus Response Act (FFCRA) may apply to their absence. Our FFCRA blog has more information. Eligibility to receive this pay has nothing to do with whether the employee is vaccinated or not, and there is no exception in the law for employees who refuse a vaccination.

While it is currently not required for employers to provide FFCRA pay in 2021, you can still obtain tax credits for doing so. With a new presidential administration on the horizon, it’s very likely that FFCRA may be reinstated, expanded or even implemented retroactively. 

We will alert our members when we have more information regarding developments of FFCRA.
 
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Can I fire someone who refuses to get the vaccine?

If you have 15 or more employees, then your business is subject to the Americans with Disabilities Act and Title VII of the Civil Rights Act, which means that your employees’ medical and religious objections to vaccination are protected by law. Some states, counties, and cities offer similar legal protections for smaller employers, as well. If your business is subject to such laws, you cannot terminate your employees for refusing a vaccine for a protected reason.

Even if you can legally terminate your employees for refusing a vaccine, the potential ramifications of doing so should be carefully considered. Will terminating your employees for not getting vaccinated result in an excessive amount of work falling on your remaining employees? Will you be able to find a suitable replacement in a reasonable amount of time? Will terminating certain employees for refusing a vaccine create backlash from the rest of your team?

In short, make sure you have an idea how the termination will play out for your business before letting someone go for refusing to get vaccinated.
 
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We’re vaccinated. Do we still have to wear masks? 

The CDC has stated that there isn’t enough data to support those who have been vaccinated to abandon safety protocols, such as wearing PPE and social distancing. 

From the CDC’s Vaccine FAQs

There is not enough information currently available to say if or when CDC will stop recommending that people wear masks and avoid close contact with others to help prevent the spread of the virus that causes COVID-19. Experts need to understand more about the protection that COVID-19 vaccines provide before making that decision. Other factors, including how many people get vaccinated and how the virus is spreading in communities, will also affect this decision.

Thus, we recommend that you maintain your current health and safety protocols, as well as treat patient appointments, in the same manner you previously had since COVID-19 presented, but prior to vaccine availability. Even if all of your employees received the vaccine, it would still be hard to determine if other patients were vaccinated, thus there is still risk present if a patient has been potentially exposed and comes to the office. 

From the ADA: 

 
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What if I still want to require a vaccine?

If you feel that you have a compelling enough reason to justify mandating vaccinations for your employees despite all of the aforementioned drawbacks, here is what you need to know:

  • You need to pay for the cost of the vaccine and for the employee’s time spent getting the vaccine.
  • The requirement to get the vaccine needs to be directly tied to the employee’s job duties/description. In other words, there needs to be an objective, job-related reason for requiring a specific vaccine.
  • You need to consistently enforce your vaccine policy. 
  • If an employee requests a religious or medical accommodation, you need to follow the accommodation process described above diligently and ensure employees are not retaliated against in any way for bringing their concerns forward or discussing them with other employees. Even the appearance of retaliation will get you in trouble. 
  • All vaccination records should be included in a separate personnel file designated for confidential medical information. 
  • Create a written policy that explains the compelling reason for requiring the vaccine, the process, confidentiality measures, and how to seek a medical or religious accommodation. 

 
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How do we respond to patients who ask if our staff members have been vaccinated?

Remember: your employees’ personal health information is protected in just the same way as your patients’ health information. Therefore, it is generally not a good idea to offer information to your patients that might expose any of your employees’ inability (or unwillingness) to get vaccinated.

If your patients ask about whether or not your team is being vaccinated, let them know that you are encouraging (or requiring) your team to get the vaccine as soon as it is available to them and that you are continuing to follow CDC and state guidelines related to preventing the spread of the novel coronavirus. 

You could even go so far as to outline the steps you are taking to make it easy and even desirable for your employees to get vaccinated. Still, you’ll want to stop short of providing specifics related to what portion of your team will or will not be getting a vaccine.

For additional guidance on this topic, specifically, we’ve actually written a script your employees can use to address this issue when it comes up.
 
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This article discusses vaccines, not COVID testing or other screening procedures. For more information on these topics, check out our resource page on How to Handle COVID Exposure in Your Office

 
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This post authored by CEDR Compliance Officer Nora Gustafson.
Updated February 9, 2021; originally published October 27, 2020

Friendly Disclaimer: This information is general in nature and is not intended to provide legal advice or replace individual guidance about a specific issue with an attorney or HR expert. The information on this page is general human resources guidance that is believed to be current as of the date of publication. Note that CEDR is not a law firm, and as the law is always changing, you should consult with a qualified attorney or HR expert who is familiar with all of the facts of your situation before making a decision about any human resources or employment law matter.