Discuss mandatory COVID-19 vaccinations carefully

by A.J. Plunkett (aplunkett@decisionhealth.com)

Refer to your policy on influenza vaccinations as you consider whether to require employees to get the COVID-19 vaccine when it becomes available.

Expect to deal with many of the same exemptions—such as health concerns or religious reasons—to mandatory COVID shots as you do with a mandatory flu vaccination requirement.

The Equal Employment Commission (EEOC) updated its pandemic preparedness FAQ at the start of the public health emergency (PHE) in March.

In answer to the question, “May an employer covered by the ADA [Americans with Disabilities Act] and Title VII of the Civil Rights Act of 1964 compel all of its employees to take the influenza vaccine regardless of their medical conditions or their religious beliefs during a pandemic?”

Quick answer: No.

“An employee may be entitled to an exemption from a mandatory vaccination requirement based on an ADA disability that prevents him from taking the influenza vaccine. This would be a reasonable accommodation barring undue hardship (significant difficulty or expense). Similarly, under Title VII of the Civil Rights Act of 1964, once an employer receives notice that an employee’s sincerely held religious belief, practice, or observance prevents him from taking the influenza vaccine, the employer must provide a reasonable accommodation unless it would pose an undue hardship as defined by Title VII (“more than de minimis cost” to the operation of the employer’s business, which is a lower standard than under the ADA),” states the FAQ, last updated on March 21.

“Generally, ADA-covered employers should consider simply encouraging employees to get the influenza vaccine rather than requiring them to take it.” As a footnote to that answer, the EEOC notes that at the time of the update, there was no vaccine available for COVID-19.

Now that there is a vaccine, employers should have a thorough discussion before making it mandatory, says Jennifer Aaron Hataway, an attorney with Butler Snow LLP, writing for HRLaws.com, a brand under BLR, the parent company to Simplify Compliance.

“Begin to consider how you’ll address the COVID-19 vaccine and find ways to give employees a voice in the decision making process,” advises Hataway.

“In some ways, whether you should implement a mandatory COVID-19 policy is a more difficult question than whether you could do so,” Hataway notes. “Employers imposing the requirement should expect to receive a significant number of disability and religious accommodation requests from employees. Be ready for the administrative burden and stay up to date on not only the disability and religious accommodation laws but also the ever-changing guidance from public health authorities.”

“Lawfully processing employees’ vaccination exemption requests, particularly those based on religious beliefs, will require well-trained HR pros and potentially the assistance of in-house or outside legal counsel. You’ll be required to engage in the interactive process and, if necessary, determine reasonable accommodations such as minimizing employee interactions, requiring masks, offering separate offices, or allowing remote work,” adds Hataway.

Local and state jurisdictions having authority may also weigh in on whether the vaccines can be required.

There is a lot still to be decided about the COVID-19 vaccines, including when and where they will be dispensed and who will get them first. CDC has recommended that healthcare workers and residents of long-term care facilities be among the first recipients.

However, informal surveys show that many healthcare providers are leaning toward not making the vaccine mandatory while others are undecided and awaiting more information.

Currently, under The Joint Commission’s (TJC) Infection Control standard IC.02.04.01, hospitals are required to offer flu vaccines to licensed independent practitioners and staff, but are not required to make annual flu shots mandatory.

The hospital is required to track why employees decline to get the vaccination, as well as gathering other information.

TJC did recently eliminate the element of performance that required hospitals to set a goal of a 90% vaccination rate.

For more on the future of COVID-19 vaccine programs in hospitals, see future issues of Inside Accreditation & Quality. 

For more on what employers should consider, see more from Hataway and other experts at BLR's HR Daily Advisor.