As more and more COVID-19 vaccinations are administered and businesses prepare to move beyond the pandemic, a critical element for many organizations will be developing an employee vaccination program.
Creating such a program could be complicated. Not only will businesses need to comply with government regulations and decide whether to encourage employees to become vaccinated, but they may also need to contend with partially vaccinated workplaces and the possibility of employee lawsuits.
Some national associations, including the U.S. Occupational Safety and Health Administration (OSHA), are issuing guidelines saying that a workplace COVID-19 prevention program is an effective way to control the spread of the disease at work. As part of this program, employers should consider making the COVID-19 vaccine available to all eligible employees at no cost and provide information on the benefits and safety of vaccinations. This information could help boost lagging vaccination rates in some parts of the U.S., where the number of vaccinations may not be sufficient to ease existing safety measures.
A complicated landscape
Already, ongoing vaccination progress has accelerated a return to the workplace. Among the factors employers must consider as they craft vaccination programs are whether to require employees to be vaccinated (and how to collect such data), and how to address exemptions — such as disabilities, health conditions or religious beliefs — that might prevent employees from being vaccinated.
The Equal Employment Opportunity Commission in the U.S. has said that businesses are generally allowed to require employees to be vaccinated, but also that employers must offer accommodations for employees with legitimate reasons for refusing the vaccine. Furthermore, while employers may in certain circumstances ask employees whether they’ve been vaccinated, they may not ask why they haven’t been vaccinated. The Canadian government hasn’t mandated vaccination, and Canada has no legal precedent for mandatory vaccination of employees.
Such guidelines set up a delicate balancing act for employers. For example, what should employers do about employees who refuse to be vaccinated even though they are not exempt under government regulations? Will the business reassign those workers to other duties, require them to work from home permanently or terminate them? Will nonvaccinated employees be allowed access to company facilities such as cafeterias or gyms? Will they be required to wear masks at all times?
In addition, employers will have to consider the potential impact of such policies on employees with limited access to vaccinations. They also will need to prepare for a return to business travel and incorporate vaccination requirements of clients, vendors and venues — as well as local government requirements in areas their employees will be visiting — into their employee vaccination plans.
On the privacy front, employers who track their employees’ vaccination status must treat such information as confidential medical records that are subject to government regulations. In addition, the regulatory landscape with regard to employers, employees and vaccinations is subject to change, so employers must keep up as regulations evolve — a particularly difficult task for companies with multistate or multinational workforces. Businesses need to also consider the practicality of employee vaccination requirements in regions or countries where vaccine supplies are limited.
Employee claims and lawsuits
Severe adverse reactions to COVID-19 vaccines have been rare, but employers should prepare for the possibility that an employee will experience one. How this scenario will play out depends on whether the employer is mandating vaccinations or simply encouraging them.
A reaction that occurs as a result of a mandated vaccination is likely to fall under workers’ compensation. In the U.S., OSHA recently provided guidance saying that adverse reactions to mandated vaccinations are “work-related.” Canada has not provided guidance on such claims, and it hasn’t clarified whether employers can mandate vaccines.
Even in voluntary vaccination programs, an employee suffering an adverse reaction may be able to pursue a workers’ compensation claim, particularly if the employer encouraged the employee to be vaccinated or the vaccination took place at work. Employers should be prepared to track and report all cases of employees who experience adverse reactions to COVID-19 vaccinations.
Mandatory vaccine programs could raise the risk of discrimination or retaliation claims. But failing to require a vaccine brings its own risks, including more complicated return-to-work decisions and the possibility that employees will allege unsafe working conditions. Employers with partially vaccinated workplaces might also face discrimination claims that they’re treating vaccinated and unvaccinated employees differently.
Some employers are offering incentives for employees to get vaccinated, including cash, gift cards and even small appliances. Depending on how they are administered, those incentives might constitute taxable income for the employee, so employers should consult with legal counsel before including such gifts in the employee vaccination program. Employers must also keep in mind that employees may need booster shots in the future. Offering incentives now may lead employees to expect future incentives as well.
The U.S. Centers for Disease Control and Prevention (CDC) and others suggest that incorporating effective communications strategies into employee vaccination programs can build confidence in the vaccines and encourage workers to receive them. Employers also should offer flexible, nonpunitive sick leave for employees experiencing side effects from the vaccinations and allow employees to get vaccinated during work hours or during paid time off.
The city of Chicago and the state of Colorado, for example, require employers to give employees paid time off to be vaccinated and recover from side effects, while several Canadian provinces have implemented paid-leave policies for COVID-19 vaccinations.
As businesses prepare for a post-pandemic world, employee vaccinations will play a critical role in the return to more normal business conditions. An effective, customized employee vaccination program that keeps pace with the evolving pandemic — and regulatory landscape — will best protect employees and, ultimately, employers.