Companies who waited for government mandates must now take a stance on COVID vaccinations independently.
As of January 13, the Biden administration’s vaccine-or-test mandate for companies with 100+ employees was tossed by the U.S. Supreme Court — just three days after it took effect. The mandate still stands for health care facilities that receive Medicare or Medicaid reimbursement.
Even outside of healthcare, many companies have already enacted their own vaccine requirements. Take apparel company Carhartt, for example, which required its retail, manufacturing and distribution workers to be vaccinated as of January 4. Many companies — including DoorDash, Uber and investment management firm BlackRock — have required vaccinations for those returning to the office. While other organizations, including Starbucks, walked back the mandate after the federal order was repealed.
Senior Executive Media has gathered frequently asked questions (and answers) to help your company evaluate its approach to vaccinations.
So it’s that simple — no federal vaccine mandate?
No. Be prepared to see other federal-government imposed mandates in the news as judges continue to evaluate policies.
Another policy would require federal government contractors to be vaccinated. A federal judge in Georgia blocked that mandate, ruling that the requirement creates an unfair economic burden.
My company prepared for months to institute a vaccination requirement to comply with the federal mandate. Now what?
Companies are free to set their own safety rules, including mandating vaccinations against COVID, explains workplace lawyer Robert Niccolini of law firm Ogletree Deakins. Niccolini has experience serving businesses in the healthcare, technology, insurance, government contracting and hospitality sectors.
Employers must be aware of two main exemptions to vaccination requirements, according to the CDC.
- Medical contraindication. If a person’s doctor says they are allergic to the COVID vaccine or have a condition that does not allow for vaccination, employers cannot require that person to be vaccinated.
- Religious accommodation. Title VII of the Civil Rights Act of 1964 requires employers to make exemptions to vaccination requirements based on “sincerely held” religious beliefs or observances, unless an accommodation would cause undue hardship for the business.
How can I tell if a religious belief is sincere?
The Equal Employment Opportunity Commission suggests that employers treat requests for religious exemptions as sincere. However, employers are able to ask for supporting information as to why there is a conflict between a sincerely held religious belief and vaccination requirements. If the employee cannot provide the information, the employer can deny the request, says the Society of Human Resources.
Proof of a religious belief may include written materials defining the belief, an employee’s first hand description of the religious practice and documents from potential witnesses.
If an employee seeks an accommodation, what are my alternatives?
When possible, continue offering employees the chance to work remotely, eliminating the need for unvaccinated employees to work in the physical office. If an unvaccinated employee must return to the office, you should enforce long-standing pandemic protocols. That includes mandatory masking, regular testing and continued social distancing.
What about mandatory testing? Is that a good alternative?
Some employers have used testing as an alternative to vaccination. However, employers relying on testing will also need to enact other safety protocols, such as mask mandates, Niccolini says.
These employers will also have to assess the frequency of testing. While Amazon and other large players have begun building their own testing labs, daily testing may be a challenge for your company. Most organizations test their employees once a week or every two weeks, Niccolini says.
How should my company roll out its vaccine mandate?
When it comes to building and enacting a vaccination policy, start with clear communication and careful consideration for the administrative requirements.
- Give written notice. Leaders should inform their employees of what the requirements are and why they are being enacted.
- Pick a date to enact your requirement. That gives employees time to get vaccinated — or establish a valid exemption. If employees don’t comply by that date, then companies can and should follow through on stated consequences.
- Be clear about who’s affected. Are vaccines required for all staff or just in-office staff? Are you requiring people visiting the office building to be vaccinated or tested? Are your suppliers affected? Your plan should spell it out.
- Prep your HR department. Designate a particular leader and team to oversee vaccination enforcement. That includes checking for proof of vaccination, maintaining a confidential record-keeping system and tracking down employees who fail to produce the necessary documentation.
Employers must commit to enforcing their own vaccine mandates. Cases must be dealt with fairly and systematically, says Niccolini. For example, if one employee complies but finds out that a coworker was not held to the same standard, you may end up with a disgruntled team or a lawsuit.
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Can I fire an employee for refusing to comply with my company’s vaccine mandate?
Yes. All states now recognize some form of at-will employment. If the employee does not have a written contract, employment can be terminated by either party at any time, for any reason. However, this at-will doctrine cannot conflict with any federal, state or local laws, Niccolini says.
Can my employees sue me over my vaccine mandate?
Terminated employees may push back by asserting protections for medical or religious reasons. Even without legitimate grounds, your employees may try to sue, Niccolini acknowledges.
However, nothing prevents employers from creating “reasonable terms and conditions of employment,” including vaccination, as long as these terms don’t violate the law, he says.
Will employees really quit over a vaccine mandate?
Understand you may lose labor. People who fail to comply with vaccine mandates will be fired. This can be a “hard pill for employers to swallow,” especially in certain industries where there is a massive labor shortage, says Niccolini. “Even in healthcare…hospitals had to step back from vaccine mandates because there were not enough employees to staff the hospitals,” he said.
How is your company approaching vaccination requirements? Send us an email to share.