Employers and business leaders must decide how to handle COVID-19 vaccinations for employees. It’s a hot-button issue that’s complicated by an array of factors. And, as with so many issues businesses have faced during the pandemic, there are no easy answers.

There are several general points worth contemplating when considering your company’s best course of action.

In this article, we will:

• Provide links to federal guidelines on the topic
• Consider possible pros and cons of requiring vaccines for employees
• Outline four common approaches
• Explore exceptions employees may seek to vaccination mandates
• Identify five potential legal issues related to the topic

Essential resources for COVID-19 vaccines and the workplace

For the most up-to-date information, please visit the following government websites:

• Workplace vaccination program – Centers for Disease Control and Prevention (CDC)
• COVID-19 vaccination distribution process – U.S. Health and Human Services
• What you should know about COVID-19 and the ADA, the Rehabilitation Act and other EEO laws – U.S. Equal Employment Opportunity Commission (EEOC)
• EEOC proposed wellness rules

The situation will continue to evolve over time – making ongoing, reliable HR and legal guidance more critical than ever before.

Pros and cons of requiring COVID-19 vaccinations for employees

Before deciding which approach to take in your business, spend time evaluating all possible outcomes, both positive and negative, that could result from a COVID-19 vaccine mandate for employees.

These will depend on an array of unique factors specific to your business and workplace. Other factors include federal, state and local laws (not to mention vaccination distribution plans and availability).

Possible pros:

• Reassurance for your workforce that your company is doing everything possible to protect them and prevent the spread of COVID-19 in your facilities
• Reduction in potential liabilities associated with employees contracting COVID-19 at work

Possible cons:

• Negative impact on morale if most employees prefer to make their own healthcare decisions
• Logistical and enforcement challenges
• Greater administrative obligations, as well as the requirement to engage in accommodation dialogues with employees who cite exceptions to their receiving vaccines (see below)
• Potential future legal repercussions or liabilities (e.g., if an employee experienced an allergic reaction to a required vaccine)

COVID-19 vaccinations for employees: Four approaches

In many situations, employers can require employees receive a COVID-19 vaccine prior to returning to a workplace.

In general, employers are not required to provide a business justification and may not be required to demonstrate a relationship between an employee’s job and the need to get a COVID-19 vaccine.

However, whether your business can require COVID-19 vaccinations for employees and whether it should are two separate issues.

The following approaches reflect a wide spectrum of options, which may or may not be suitable for your specific business or workplace.

1. Mandating vaccines

If you decide to require COVID-19 vaccinations for employees, you’ll need to implement a formal policy. Note that it’s reasonable to assume that your company will never achieve 100% compliance with your vaccination mandate.

You may expect one or more employees to assert the following exceptions:

Medical conditions, which require accommodations

Some employees may have conditions that preclude them from receiving a COVID-19 vaccine.

For example, health experts have advised certain immunocompromised individuals refrain from being vaccinated, at least for now. Others may have an allergy to a vaccine ingredient.

In these instances – and according to the Americans with Disabilities Act (ADA) – employers may only exclude employees from the workplace if they can prove that an unvaccinated employee would cause a direct threat due to a substantial risk of harm to the health and safety of the individual or others that cannot be eliminated or reduced by a reasonable accommodation.

Employers are required to engage in the ADA interactive process to decide how an employee’s unique situation may best be accommodated.

Note: Exclusion from the workplace should not necessarily equate with termination, as it may be possible for the employee to still perform work with an accommodation. It’s critical to consult with HR experts to handle these situations in an optimal way.

Religious beliefs

If an employee objects to receiving a COVID-19 vaccine based on their religious beliefs, work with them to determine what accommodations might enable them to continue working.

To legally exclude an employee from the workplace, you must demonstrate an undue hardship on your business in accommodating them.

Remember: exclusion from the workplace (resulting from a refusal to receive a COVID-19 vaccine) doesn’t necessarily mean termination.

Personal concerns or objections

What about employees who simply refuse the vaccine for various personal reasons? Maybe they perceive coronavirus vaccines as having not yet been thoroughly tested. Perhaps they object to receiving any vaccines, period.

This is potentially the trickiest scenario as there are no clear-cut resolutions. Try speaking with the employee directly and privately about their specific concerns, keeping in mind that their fears could be sufficient to trigger an ADA accommodation.

At the same time, be careful not to probe for personal information (“why” questions) or appear to violate medical privacy in any way.

As you can see, dealing with accommodation, termination and exclusion issues can be complex when mandating vaccinations for employees. That’s why many business owners and leaders opt to consult with experienced HR personnel, a professional employer organization (PEO) or legal resources to help minimize risks and potential liability.

2. Incentivizing vaccines

If you decide to influence – but not require – employees to get a COVID-19 vaccine, you may want to provide information and training on vaccine benefits and safety. You may also consider creating an incentive plan and sharing the plan with your workforce.

Some tips:

• Incentives might be anything from gift cards to additional paid time off (PTO).
• Think about what would be most attractive to your employees.
• Choose an incentive that aligns best with your workplace culture.
• And make incentives consistent across the board.

In January 2021, the Equal Employment Opportunity Commission (EEOC) proposed a new rule for the level of incentives that employers may lawfully offer to employees to encourage their participation in wellness programs requiring disclosure of medical information. Certainly, vaccines fall within the category of wellness plans.

• Currently, employers can offer incentives up to 30% of the total cost of health insurance.
• Participation in any wellness program must be voluntary.
• The new proposed rule states that, because participation must be voluntary, employers may offer no more than a minimum incentive to encourage participation.

Again, consult HR and legal resources when considering incentives – whether they’re designed to encourage vaccinations for employees or simply boosting staff morale.

3. Recommending vaccines

In this approach, you let employees know that your workplace recommends they get a COVID-19 vaccine. Your leaders are vaccinated to set a good example, and you provide information and training on the benefits and safety of vaccinations. 

You’ll want to decide how you want to communicate your recommendation to your workforce, ensuring everyone gets the message. Provided everyone has access to the content, some internal communications strategies that might work include:

• Emails
• Poster campaigns
• Letters
• Notices listed on your intranet

The recommendation approach has the benefit of putting your company on the right side of disseminating sound health advice and reinforcing your commitment to health and safety. It also may sidestep special obligations or potential liabilities.

4. Taking a hands-off approach

In this approach, your company takes no official stance on the COVID-19 vaccine. There’s no requirement or attempt to influence vaccinations for employees. Staff members are left to decide for themselves – as they already do with other vaccines for infectious diseases.

Although the hands-off approach is the simplest, it’s not necessarily right for every business or workplace. For instance, your employees could perceive this approach as being unresponsive amidst a serious crisis.

Again, sound HR and legal guidance can help assess the suitability of this or any of the other three approaches to employee vaccinations.

5 COVID-19 vaccine-related legal issues to watch out for

The following issues are common but may not necessarily include every scenario in which business leaders find themselves puzzling through. Again, factors specific to your business, workplace or laws in the community (or communities) in which you operate may mean more legal considerations.

So, consider these to be general starting points as you reflect on your own best options.

1. Employee relations issues

Some employees may shun colleagues who haven’t received – or refuse to get – a COVID-19 vaccine. Train your frontline managers to be on the lookout for problems and how to handle them.

Communicate with your workforce about behaviors that won’t be accepted and how they can appropriately voice their concerns. Consider, too, how you can accommodate employees who have concerns about working alongside unvaccinated colleagues.

Prepare to help ensure that any arguments or interpersonal issues are resolved promptly before they escalate to harassment claims.

2. Retaliation

Be careful to avoid any appearance of company retaliation against an employee who doesn’t receive a COVID-19 vaccine. For example, you can’t offer better work assignments or promotions based on those who have been vaccinated.

3. Discrimination

You very well may have the best of intentions, simply wanting to keep your employees safe.

However, don’t target communications about vaccines or emphasize the need to be vaccinated only to specific segments of your employee population.

For example, don’t single out older employees or people who you perceive to have health issues. Otherwise, your company could be accused of discrimination.

4. Employer liability for adverse reactions

It’s possible that, if an employee has an adverse reaction to a COVID-19 vaccine, they could blame your company – and choose to pursue a legal claim to obtain some sort of compensation.

Maintaining workers’ compensation insurance is the best guard against this risk.

5. Asking about an employee’s COVID-19 vaccination status

Companies are able to ask employees or job candidates if they’re vaccinated against COVID-19. The important thing is to stick to yes or no questions. Don’t probe further for more details lest you violate someone’s medical privacy.

However, companies can’t base hiring decisions on vaccination status. If you opt to mandate COVID-19 vaccines, this policy should be communicated to candidates since it may impact their decision to join your company.

Summing it all up

If your company chooses to mandate COVID-19 vaccinations for employees, you may be well within your rights as an employer to do so.

But there are many important factors you should consider before deciding on this plan of action. Again, if you choose to move forward, it’s wise to develop a vaccination policy with the support of an HR professional or legal counsel.

The COVID-19 pandemic is a complex, constantly evolving situation with major ramifications on the workplace. To get updates and learn more about navigating workplace issues during this unprecedented time, visit the Insperity COVID-19 Resource Center.