Mandating COVID-19 vaccines for high-risk employees might not be as safe as it sounds

Healthcare workers are a pandemic’s heroes. They risk their lives on the frontlines every day and are essential to helping communities survive, heal, and thrive. But they are also human and have their own emotions, fears, and concerns to contend with.

COVID-19 vaccines are now widely available but while that may relieve some healthcare workers, there are others who still have their reservations. Their employers, on the other hand, often feel it’s in their best interest that as many of their employees as possible get vaccinated.

The question for these employers has become: “Should I make vaccines mandatory?”

The trouble with mandating or incentivizing the COVID vaccine

The U.S. government is making a big push for as many people as possible to get their first vaccine dose before the Fourth of July holiday. In the past, big holiday celebrations have led to significant increases in positive COVID cases. If that happens again, it could put further strain on medical clinics and hospitals. But while the threat to essential healthcare workers is still very real, making COVID vaccines mandatory may come with risks to the employer.

There are a number of reasons why employees may be hesitant or refuse to get vaccinated.They may be immunocompromised, pregnant, or have other pre-existing health conditions that cause their doctors to recommend they avoid the vaccine. Some may be wary of getting a vaccine that isn’t fully FDA-approved. Others may have strong religious reasons for not getting vaccinated.

There are multiple laws that could be violated if employers aren’t cautious, such as the Americans with Disabilities Act (ADA), Title VII of the Civil Rights Act, the Age Discrimination in Employment Act (ADEA), and certain privacy laws.

Employers could also invite further risks to their organizations if, instead of mandating the vaccine, they attempt to incentivize employees to get vaccinated. It’s important to consider whether such incentives can be provided in a consistent and fair manner. For example, the Americans with Disability Act and the Civil Rights Act require that reasonable accommodations be provided—including the eligibility for any incentives without receiving the vaccine—and that protected employees have an opportunity to engage in the interactive process. The potential for legal liability should be carefully considered by employers when creating policies and programs.

What the law says

The U.S. Equal Employment Opportunity Commission (EEOC) provides extensive advice on how to maintain compliance with the various laws governing employees’ rights. It reports that under the ADA, Title VII, and other federal employment nondiscrimination laws, employers can require all employees who enter their work premises to be vaccinated for COVID-19. However, this mandate is subject to the reasonable accommodation provisions of various laws and other equal employment opportunity (EEO) considerations.

“In some circumstances, Title VII and the ADA require an employer to provide reasonable accommodations for employees who—because of a disability or a sincerely held religious belief, practice, or observance—do not get vaccinated for COVID-19, unless providing an accommodation would pose an undue hardship on the operation of the employer’s business,” the EEOC report states. “Employers should keep in mind that because some individuals or demographic groups may face greater barriers to receiving a COVID-19 vaccination than others, some employees may be more likely to be negatively impacted by a vaccination requirement.”

It’s important to note, too, that some states have passed laws in recent months that restrict employers from requesting or requiring employees to share proof they received a vaccine. Other states are considering similar legislation. Further, court cases are now in process and additional ones will likely follow that will provide greater clarity around the parameters and guidelines in this area. All employers would be wise to follow these developments and consult their legal counsel regarding the latest legislation and court rulings.

Important Considerations

If an employer is considering mandating or strongly recommending the vaccine because it employs high-risk frontline workers, it is critical that regardless of vaccine status, safe workplace requirements and/or reasonable accommodations be in place and consistently administered. These accommodations can include:

1. Requiring and providing masks, face shields, and any necessary personal protective equipment (PPE)
2. Symptom and/or temperature checks
3. Social distancing from coworkers, patients, and other non-employees
4. Disinfecting shared workspaces and equipment
5. Modifying shifts whenever possible to reduce the employee’s exposure to others
6. Periodic COVID-19 testing
7. Reassignment of duties if necessary
8. Flexibility to telework if possible

Here is a real-world example of how one employer, a palliative care hospice provider, accommodated a pregnant registered nurse (RN), who refused to be vaccinated and who claimed she could not safely perform her duties due to potential exposure to COVID-19 when administering care to patients:

1. The RN refused to obtain a vaccine and provide direct care to patients that were displaying COVID-19 symptoms.
2. The employer, in partnership with its HR representative, engaged in the interactive process to determine what reasonable accommodations would be needed to assist the employee.
3. The RN provided appropriate documentation from her physician related to her high-risk pregnancy requiring she avoid the vaccine in addition to direct patient care.
4. The employer and HR representative created a reasonable accommodation that would allow the RN to work from her home by performing triage calls; scheduling shifts for licensed practical nurses (LPNs); and performing other telework duties for a determined period of time, which was mutually beneficial to the employee, staff, and employer.

Accommodations need not be expensive or overly burdensome for the employer. Leveraging the skills of an HR expert can help employers determine creative and agreeable alternative solutions that also promote positive morale and safety while preventing legal complications. Each potential accommodation situation is unique and should be reviewed independently.Employers who consult with their HR team and, when needed, legal counsel, will help ensure a proper assessment and better outcome.

Communication is critical

To avoid the risks that come with mandating vaccines, employers should focus on increasing their communications with employees. Implement a COVID safe workplace policy that stays on top of best-practice safety and health guidance from the Centers for Disease Control and Prevention (CDC) and the Occupational Safety and Health Administration (OSHA). Clearly articulate expectations for employees, highlighting the steps the organization is taking to ensure that employee safety and protection is a priority.

Employers can work with their human resources and internal communications teams to share key messages with updated information about:

• The different vaccines available
• Potential benefits and risks associated with each of the available vaccines
• How getting vaccinated can protect employees, their families, their vulnerable patients, and their entire communities

Leave the door open for employees to voice their concerns about getting vaccinated or using personal protective equipment (PPE), and then provide answers to their frequent questions and publish them somewhere accessible to employees.

The CDC offers a number of resources to help organizations communicate with essential workers about the COVID vaccine, including a customizable email template, a newsletter article template, a COVID-19 Vaccine Basics PowerPoint slide deck, a myth vs. fact vaccine FAQ, and more.

Constantly evolving laws in a high-risk industry make it imperative that every organization remain up to speed with the latest CDC and OSHA recommendations. Seek assistance from HR advisors and legal counsel to navigate the law and determine whether a vaccine mandate or incentive is the right course ahead.

Jacqueline Trujillo is a client success manager for G&A Partners, a leading professional employer organization (PEO) that has been helping entrepreneurs grow their businesses for more than 25 years. She currently serves several clients in the healthcare industry from her office in Arizona.