It’s Time: What You Need to Know to Establish Your Vaccination Policy

We have reached a point in the second year of the COVID-19 pandemic where companies need to develop and implement a vaccine policy for inclusion in the HR policies and procedures handbook to help ease employee concerns. Establishing a clear vaccination policy has become a priority, as vaccination reluctance creates additional cause for concern, awakening employers who hoped the virus had reached its zenith.

Don’t be afraid to establish an HR policy because the COVID-19 vaccine is a workplace Human Resources issue that needs addressing like all other HR concerns. Without a policy, it’s nearly impossible for your managers and supervisors to maintain consistent decision-making. The last thing you want is one department having different rules compared to another department. If you're looking for more information on establishing your policy, and some of the legalities surrounding mandates, make sure to check out this episode on vaccine policies.

You must carefully craft your vaccination policy to protect the civil rights of employees while ensuring workplace safety. The EEOC vaccination policy provides a good foundation for developing an employer vaccine policy that is legal and demonstrates employer concern for employee safety and health. The challenge lies in public opinion - so many people seem to feel strongly one way or the other about getting a vaccine.

Nonetheless, establishing an employer vaccine policy is crucial now for many reasons. First and foremost, the health and safety of employees, customers, and vendors - but also staying union-free or avoiding Unfair Labor Practice (ULP) charges. Even if the National Labor Relations Board dismisses the ULPs, your business will spend thousands of dollars defending itself. The vaccine is a critical issue for employees and a hot topic for unions that have used the pandemic as a rallying point for worker treatment.

Foundation of the Vaccination Policy

You may or may not want to require employees receive their COVID-19 vaccine. Each employer must decide what is best for their employees, customers, and the business itself. The law requires employers to provide a workplace that is free of known risks, and COVID-19 is undoubtedly a risk. The Occupational Safety and Health Administration’s General Duty clause says you must provide each worker “employment and a place of employment, which are free from recognized hazards that are causing or are likely to cause death or serious physical harm.”

Requiring a Vaccine?

The EEOC dove into the issue of an employer-mandated vaccine policy when it issued new guidance, but unfortunately, it’s not a simple yes or no answer. Some employees are exempt from mandatory immunization because of underlying medical conditions or pregnancy. The challenge is that employers must adhere to the Americans with Disabilities Act (ADA), the Rehabilitation Act, the Genetic Information Nondiscrimination Act (GINA) and Title VII of the Civil Rights Act. 

Accommodations?

It’s important to understand that an employer can require all employees entering the workplace to be vaccinated for COVID-19, but organizations must also provide reasonable accommodation as required under the ADA and Title VII. GINA and the Civil Rights Acts limit the employer’s ability to question employees about medical conditions or events like exposure to the virus at home.

Accommodations address people with disabilities or sincerely held religious beliefs, practices, or observances and pregnant employees. There is also the chance one or more employees may claim the vaccine requirement has a disparate impact on them based on their race, religion, color, sex, or national origin. Employers cannot discriminate. Some employees may also face more significant barriers to getting a vaccine, making a mandatory vaccine a hardship. 

Reasonable accommodation for those employees that don’t get vaccinated due to reasons explained in the ADA or Title VII may include requiring the unvaccinated employee to:

• Wear a face mask
• Maintain social distancing
• Work a modified shift
• Work remotely
• Get periodic COVID-19 testing
• Accept reassignment

You must develop your policy working hand-in-hand with a communications expert, HR policy expert, and legal professionals. The law expects employers to find alternatives for employees who can’t be vaccinated. Employers can ask employees to provide proof of vaccination, but cannot ask for any other medical information. Some employees are offering incentives to employees who share their vaccination status voluntarily.

This is a difficult situation for you as an employer. Though some legal questions have been answered at this point, there’s plenty of opportunity for interpretation. For example, if your mask-wearing policy is dependent on vaccination status, how do you know who is vaccinated or unvaccinated unless you ask employees to share confidential medical information?

Mandate Vaccines or Voluntary Vaccines?

Many people don’t want to get the vaccine, and your official policy must address that factor. There are two routes for this: a mandatory vaccination policy or a voluntary vaccination policy. In addition to keeping your workplace safe for employees, you also want to recognize that labor unions are watching and waiting for opportunities to make your vaccine policy and its implementation an opening to start a union organizing campaign.

Deciding whether to mandate or not mandate the vaccine is a huge decision. You’re bound to make some employees happy and some unhappy no matter what you choose. It’s a challenge to maintaining positive employee relations. Some points to consider include:

• Potential for harm caused to employees and customers when employees refuse to get vaccinated
• Alignment with federal, state and local laws
• The current rate of vaccination in the workforce
• Consistency with existing policies for other vaccines, i.e., influenza, measles, mumps, etc.
• Labor union presence and expectations
• Position of local competitors and other organizations and businesses on vaccines
• Industry standards concerning vaccines, i.e., food workers
• Employee preferences and expectations

Preparing a Vaccination Policy

Some guidelines, whether you make vaccination mandatory or voluntary, include the following.

• Keep the policy consistent with your organization’s culture and values. Prepare a clear explanation of the vaccine position and the reasons for the policy.
• Consider the makeup of the workforce and expected number of employees who will request exemption from vaccination.
• Consider vaccine policy implementation in terms of application to different workgroups or units; new hire onboarding; remote workers and field workers who periodically return to the workplaces; employees who object to vaccines; contractors and vendors who visit the workplace; etc.
• Determine the payment for or reimbursement for the cost of the vaccination
• Affordability of paid leave time to get vaccinated or to recover from short-term symptoms after vaccination
• Include forward-thinking information with regard to future vaccines, booster vaccines, etc.
• Establish your process for handling requests for accommodations

The best vaccination policy for employers is one that fits your organization. There is no Covid-19 employee vaccination policy template or single approach that applies to all businesses, so realize that everyone is starting from scratch.

You do need to develop a vaccination policy that includes an enforcement element. However, this is a particularly tricky area, and many employers prefer to offer employees incentives to get the vaccination. The policy language must be clear - even with a mandatory policy, you cannot force any employee to get vaccinated, but there are consequences for refusing. Those consequences could include termination or refusing to allow an employee to enter the workplace.

Developing a vaccination policy and an operational plan behind it should be an inclusive process. You should: 

• Assemble a dedicated workgroup – The group is responsible for developing your vaccination policy and operational plan.

• Review and analyze vaccination data – The FDA Emergency Use Authorization process has approved three vaccines that have been administered to 186 million Americans (at least one dose) as of July 20, 2021 and 48.7 percent of the population has been fully vaccinated. You can collect state and local data that help you determine the best policy and help you inform employees of vaccine safety. 

• Review previous vaccine policies – Make sure the COVID-19 vaccine policy is consistent with previous vaccine policies. It may be necessary to amend all vaccine policies to avoid contradictory messaging.

• Consult with medical professionals and labor law attorneys – Consult with medical experts and attorneys to gain the most recent information on vaccines and medical privacy laws. This step helps you avoid unintentionally breaking laws.

• Train your leaders – Your frontline leaders will have a lot of influence on whether employees are willing to get a vaccine and are vital to supporting the vaccine policy throughout the workplace. Engage your leaders in policy development and make sure to train all executives, managers, and supervisors fully. 

IRI Consultants can support you in these steps, using on-the-ground knowledge of how organizations are meeting this challenge now. 

If you do use a Covid-19 employee vaccination policy template, it should only be treated as a tool that helps the policy development process get started. Don’t rely on “boilerplate” language, as it can feel inauthentic, making your vaccination policy difficult to enforce.

Consider Labor Unions During Vaccine Policy Development

Remember that your workplace has unique characteristics, things such as the ability to adopt flexible schedules, multiple work locations, working face-to-face with customers, etc. Labor unions have used the pandemic as an opportunity to build membership and gain public attention as the workers’ champion, positioning themselves as the only ones that really care about the health and safety of employees.

Whether or not you are unionized, it’s essential to know where unions, especially local unions, stand on employer vaccine policies. Some points of focus include the following.

• Flexible sick leave options, should employees experience vaccine side effects.
• Non-punitive nature of employer actions should employees test positive or are exposed to COVID-19 and need to quarantine, or experience vaccine side effects.
• Accommodations for employees who can’t be vaccinated or refuse the vaccination
• Clear communication of each requirement of the policy to all employees, i.e. showing proof of vaccination before entering the workplace, exemption application process, how accommodations are handled, etc.
• Union input into employee training and the right to raise concerns and issues
• Union access to vaccination, testing, and workplace surveillance measures

From a legal standpoint, unionized employers with a mandated vaccination policy will almost certainly need to work with the union(s). These discussions should include issues like scope of payment for time off due to virus symptoms or required quarantining, yearly vaccine requirement, where the employees will be vaccinated, specific safety measures like employer-provided PPE, etc. It can get very complicated as to whether specific vaccine issues will trigger mandatory bargaining.

The National Law Review offered explanations of some union-related issues. For example, if your healthcare plan provides flu vaccines, then the COVID-19 vaccination is included in the already negotiated health benefits structure. If your healthcare plan doesn’t include other vaccines, covering the COVID-19 vaccine becomes a new benefit that you must discuss with your union(s). It’s advisable to consult with the team at Projections and IRI to access a robust network of consultants who can guide you in developing your unique vaccination policy. Enlisting expert help will help you establish a policy that supports a union-free workforce and doesn’t violate bargaining requirements in a unionized workforce workplace.

Prepare For Frequently Asked Questions

Considering the complexity of a mandatory or non-mandatory vaccination policy for employers, your employees will have many questions. You can answer them via a FAQ page. You can post the page on your intranet or secure web-based internet, along with a way for employees to ask questions not on your list. Following are some sample mandatory covid-19 vaccination policy questions:

• Why is the COVID-19 vaccine mandatory and not voluntary?
• Is it legal for an employer to mandate vaccination?
• Is there a penalty for declining a vaccination?
• Will the vaccine mandate apply to contractors, vendors and gig workers?
• If I already had COVID-19, do I need to get the vaccine?
• I work remotely, so do I need a vaccine?
• Can I work remotely instead of getting vaccinated?
• Are managers and supervisors also required to get the vaccine?
• How do I prove I am vaccinated already?
• What are the leave policies if I have a reaction to the vaccine?
• How do I request accommodation or exemption from the vaccine?
• How will you address employees who refuse to follow mandatory protocols?

These are just a few of the questions employees are asking now. You should also be prepared to address questions regarding schedules, work absences, safety measures, particular types of exemptions, what to do if a coworker says they have COVID-19, covering absences, and on and on. There are questions your leaders and their employees haven’t even thought of yet.

Getting Started Developing a COVID-19 Vaccination Policy

Thoroughness is essential because it demonstrates your strong effort to treat employees fairly and consistently. You can download our Vaccine Policy Guide, with specific considerations for your mandatory covid-19 vaccination policy. The Vaccination Policy Guide is a great start, but don't be overwhelmed by making it unique to your workplace. Our team of consultants at IRI can assist in developing and communicating a vaccine policy that is right for your organization and helps you stay union-free.

Don't forget to check out the ProjectHR episode that covers this in more detail, and subscribe to the podcast.