Earlier this month, the U.S. Equal Employment Opportunity Commission (EEOC) indicated that employers may require proof that employees have gotten the COVID-19 vaccine and not violate non-discrimination laws, including the Americans with Disabilities Act (ADA). At the same time, however, the EEOC didn’t greenlight employer vaccine mandates.
In light of the agency guidance and the questions that remain about what employers can and can’t do regarding vaccine mandates, legal experts suggest considering a few questions before you make any definitive moves:
- Could a mandate’s exceptions ‘swallow the rule?’ It is clear that employers may need to exempt workers who can’t receive the vaccine because of a disability or sincerely held religious belief (although these workers may then be excluded from the workplace in some situations). However, employers also need to consider how they will handle vaccination policies regarding pregnant women and younger workers.
- Is the current stage of vaccination conducive to a mandate? The current federal authorization identifies the vaccines as being in the experimental stage, as they haven’t received full FDA approval. Many organizations have already indicated they won’t mandate vaccines until approval is finalized.
- Should employees get paid time off to receive a vaccine? Should you incentivize them to be vaccinated? These efforts may encourage more workers to receive the vaccine.
- What action will you take if a group of employees refuse to be vaccinated? This will require some legal guidance and knowledge of the National Labor Relations Act.
- How might things change as the vaccine becomes more widely available? Plan to revisit and possibly revise policies and procedures as more employees and other stakeholders have the opportunity to be vaccinated.
