COVID-19 vaccination has become a highly contentious issue, and for many, it’s one rife with ethical concerns.
Private employers are finding themselves mired in the vaccine debate. While some employers have mandated vaccination for their employees, others have chosen to avoid the contention by encouraging their employees to opt for the vaccine. Regardless of their approach, many employers have questions about what is legally permissible. President Joe Biden recently announced a plan that will require private employers with 100 employees or more to mandate vaccinations or weekly testing for their workers. However, the law is somewhat murky in states where federal and state law overlap.
As an employer, how should you approach the issue of COVID-19 vaccination in the workplace?
Can COVID-19 Vaccination Be Mandated By Employers?
On September 9, 2021, President Biden announced that an emergency temporary standard is being developed by the Department of Labor’s Occupational Safety and Health Administration (OSHA) that will require private employers with a workforce of 100 employees or more to mandate vaccinations or weekly testing for their workers.
But, even before that announcement – and even for employers with fewer than 100 employees – it was legally permissible in most states for private businesses to not just ask whether employees have been vaccinated but to mandate COVID-19 vaccination.
Many employers have been cautious about mandating the vaccine, worried in particular about the legalities of such a mandate under HIPAA (the Health Insurance Portability and Accountability Act). Many people believe that, under HIPAA, medical information is legally protected as confidential and no one can ask for an individual’s private health record.
In fact, HIPAA legislates what a health care provider can share about their patient’s health record. HIPAA has no jurisdiction over what people (or an employer) can ask about an individual’s health record. Legally, businesses may ask for proof of vaccination and individuals cannot use HIPAA as a justification for not providing that information.
Additionally, there is legal precedence for both the government and private companies to require vaccination for entry, service, and travel. As The New York Times explains, the “1905 Supreme Court ruling in Jacobson v. Massachusetts … allowed states to require people to be vaccinated against smallpox. That decision paved the way for public schools to require proof of vaccinations from students.” As a result, as reported by the Society for Human Resource Management (SHRM), “private employers who wish to require employees to be vaccinated for COVID-19 can do so with little legal risk, provided they comply with accommodation requirements, confidentiality, and any other legal obligations.”
That said, there are some states that are passing legislation that counters federal law. At the time of writing, South Carolina, Texas, Arkansas, and Florida were among those states that have enacted laws to prohibit asking for proof of vaccination, which means that vaccination cannot be mandated by employers. It’s best to check current laws in your own local and state jurisdictions before moving forward with a vaccine mandate.
Is Mandating Or Incentivizing Vaccination The Better Choice?
Governments have tried incentivizing vaccination since the spring of 2021. Ohio was the first state to offer an incentive to its residents, in the form of a lottery with potential winnings of $1,000,000 or, for teenagers, a full college scholarship. Other states followed suit and some private businesses offered incentives as well. Anheuser-Busch, for instance, promised to “buy Americans 21+ a round of beer” if at least 70% of Americans became partially vaccinated by July 4, 2021.
While some states saw a marginal increase in their vaccination rates after their incentive programs were announced, ABC News reports that other states saw no increase at all. Those individuals that did opt to get vaccinated following the announcement of an incentive program were most likely those who were on the fence or those who had planned to get vaccinated but had delayed getting their shots due to scheduling issues.
Can incentives work when employers offer them to their employees? Several companies are giving it a shot (pun intended). Incentives range from paid time off work to get the vaccine to lotteries with significant prizes, including:
- Aldi and Trader Joe’s, which are offering their employees four hours of paid time off (two hours per dose) to get vaccinated.
- American Airlines, which is offering one additional vacation day plus $50 in reward points to those employees who show proof of vaccination.
- Walmart, which is offering a $150 bonus to their employees who show proof of vaccination.
- Amazon, which is offering a corporate lottery valued at almost $2 million dollars in total, and featuring prizes that include a cash prize of $500,000, new vehicles, and vacation packages.
If you’re uncomfortable with the idea of mandating vaccination for your employees, or if you live in a state that has outright banned mandated vaccination for employees like Montana has, incentive programs may help keep your workplace safer.
Are You Considering Mandating Vaccination In Your Workplace?
If you’re a private employer with fewer than 100 employees, it’s currently your choice whether to mandate vaccination for your workers (unless of course your local or state laws prohibit this). If you’re considering implementing a mandatory vaccination policy, Jaclyn S. Clark, a lawyer with Bailey Glasser LLP, suggests contemplating several points before forging ahead.
Advance Notice And Timing
It’s important to give employees sufficient notice of any vaccine requirements. Also keep in mind the timing requirements of the different vaccines. Individuals require two doses of the Pfizer and Moderna vaccines. It’s recommended that at least three to four weeks pass between doses. Further, after the final dose, or after Johnson & Johnson’s “one and done” vaccine dose, two weeks must pass before an individual is considered to be fully vaccinated.
Paid Time Off For Vaccination
For employees who are paid on an hourly basis, in particular, the loss of wages while obtaining a vaccination may be a hardship. Consider providing paid leave to those employees who seek vaccination during their regular work hours.
Many individuals who are vaccine resistant base their stance on misinformation. In order to ease the transition to a fully-vaccinated workforce, consider providing credible information and educational materials to your employees. Clark suggests using the “Workplace COVID-19 Vaccine Toolkit” provided by the Centres for Disease Control and Prevention (CDC).
Local And State Laws
As discussed above, Montana outright prohibits mandatory vaccination policies while other states prohibit asking for proof of vaccination. Double check your local and state laws before moving ahead with mandatory vaccination.
Accommodations must be provided to those employees who legitimately cannot get the vaccine due to disability, pregnancy, or sincerely held religious beliefs. If an employer can show that unvaccinated workers are a “direct threat to the health or safety of individuals in the workplace” then those employees who cannot be vaccinated should be offered reasonable accommodations. Employers should have such accommodations planned, and might consider mandating masking and/or social distancing, remote work, or leaves of absence for unvaccinated employees.
Maintaining Masking And Other Safety Measures
As we’re seeing with the variants of concern, full vaccination doesn’t completely protect an individual from the coronavirus. Even if you implement a mandatory vaccination policy, you should still follow current recommendations from the OSHA and the CDC regarding masking, social distancing, and isolating following positive test results.
Confidential Record Keeping
Like all health records, any proof of vaccination that is held on file must be kept strictly confidential. In fact, Clark suggests that vaccination records “be maintained in a confidential file, separate from the employee’s personnel file, and should only be shared with those individuals within the company with legitimate business or health and safety reasons to access [them].”
Liability And Backlash
Although legal challenges by employees to contest mandatory vaccination policies have thus far been unsuccessful, you should consider the potential for both legal action and backlash or resistance from employees.
If you’re a private employer, you may have been unsure of how to broach the issue of vaccination in your workplace. Following President Biden’s announcement of plans for large businesses to mandate vaccination going forward, you may have had that decision taken out of your hands. However, for smaller businesses and those in states that have legislation prohibiting employers from implementing mandatory vaccination policies or from requiring proof of vaccination, you may still be uncertain how to forge ahead. Incentivizing vaccination for your employees, while likely not overly effective, may help to keep your workplace somewhat safer. Where legally permissible, mandatory vaccination policies may provide the best level of protection in your workplace but be sure to examine the many facets of this complex issue before moving ahead with implementation.