To Vaccinate or Not To Vaccinate...


It seems like this is everybody's question.


Right now, it seems like you cannot go anywhere without someone bringing up the topic of COVID-19 vaccinations. It is dominating the news, your social media feeds, and even sneaking up in less conspicuous places like random conversations with strangers. Recently I took one of the kids to an eye doctor appointment, while there it turned out the assistant's children attended the same school district as mine and inevitably the conversation became dominated by the debate of should vaccinations be mandatory or not. Now I am not going to turn this into my soapbox of why you should or should not get vaccinated, that is a personal decision you need to make for yourself, but I am going to share with you that you should consider as a business owner for the sake of your staff and employees.

As a business owner you already know when you create policies you have to consider how it will affect your staff overall, how the changes will be addressed, and how it may affect the public you work with too. You might start to feel like Goldilocks trying to decide which policy will be right for your business. We are here to help guide you through how to find that right fit for your business, read on to learn what SHRM recommends from industry experts.

Mandatory Polices

When an employer intends to mandate COVID-19 vaccination, the policy should first clearly show the scope of the policy and which employees it applies to, Ryan said. For example, most mandatory vaccine policies do not need to extend to remote employees if the employer has no intention of returning them to the workplace.

Similarly, employers may want to mandate COVID-19 vaccination only for certain job categories but not others, depending on the level of interaction those positions have with other individuals.

If vaccines will be made mandatory, include the rationale for making the policy mandatory (e.g., protecting employees' health and safety), said Carole Spink, an attorney with McDermott Will & Emery in Chicago.

Any policy mandating vaccination should clearly say the deadline by which employees must receive all doses, Ryan said. Keep in mind the impact that the vaccination deadline will have on staffing due to vaccine appointments and adverse reactions, as well as the availability of the vaccine.

If the employer will make the vaccine available to employees, the policy should set forth details about the dates when vaccines will be available and at which locations.

If employees are expected to receive vaccines through third parties in the community, the policy should supply information about where employees may receive the vaccination and indicate that the employer will pay for the cost of the vaccination if there is a charge, Ryan said.

For mandatory policies, communicate that the time spent becoming vaccinated is compensable, said Kristen Gallagher, an attorney with McDonald Carano in Las Vegas. According to federal regulations, the time an employee spends waiting for and receiving medical attention during the employee's normal work hours is compensable.

The policy also should clearly show how employees will have to show proof of their immunization. The employer should ensure that all such information and documentation will be kept confidentially—separate from personnel files.

Employers will also need to consider employees who choose not to get vaccinated for medical or religious reasons. "Any mandatory policy should also clearly set forth the process by which employees can request an exemption or other accommodation if the employee declines the vaccination on account of a qualifying medical condition or a sincerely held religious belief," Ryan said.

At a minimum, the policy should state who employees should notify about receiving an accommodation and how to request one. The policy should also assure workers that they will not be subject to retaliation for exercising this right, she noted.

Ideally, employees would not notify immediate supervisors of the need for accommodation but instead HR or someone outside of employees' direct reporting line, said Emily Mack, an attorney with Burr & Forman in Nashville, Tenn.

"The employer should advise employees that they may be required to substantiate any request for an exemption by providing appropriate documentation," she said.

A best practice is to supply accommodation request forms that will help employees and HR professionals identify the relevant information—and not more—for purposes of deciding if the employer may grant an exemption from the vaccine mandate as a reasonable accommodation, Ryan said.

The policy also should communicate the potential consequences for anyone who does not receive the vaccine and does not obtain an approved exemption by the stated deadline, she noted. Consequences might include increased safety measures, unpaid leave, or termination.

"Some employers have been requiring or encouraging flu vaccinations for years," said Brian Pezza, an attorney with Lewis Rice in St. Louis and Edwardsville, Ill. "If an employer had such a policy before, I see no reason to back away from it now."

Permissive Policies

If an employer is not mandating the COVID-19 vaccine, it may still want to issue a written policy strongly encouraging COVID-19 vaccination and finding sites where employees may receive the vaccination, Ryan said.

To the extent that the employer offers any incentives in lieu of requiring the vaccine, the policy should identify the criteria for earning the incentive, she added. "If the employer will offer incentives to employees for voluntarily receiving a vaccine administered by the employer or its agent, the incentive must not be so substantial as to be coercive."

An employer may also consider issuing a written policy requiring employees to show their vaccination status, without requiring vaccination.

Such a policy should clearly show if employees must self-attest to vaccination status or show a copy of proof of immunization.

Remember, you do not have to struggle through crafting your policies alone. We can help you create policies that will fit your needs and meet the goals you are trying to conduct, just contact us today to begin.

Part of this blog come from a recent article on SHRM.org

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