Be cognizant of state and federal anti-discrimination laws when enacting vaccine mandate policies

As the ongoing pandemic converges with staffing issues and efforts to increase vaccination rates, many employers have been left in the middle wondering about their potential risks related to the coronavirus. Many of these issues arise out of efforts to require employees to receive the vaccine. Deciding whether to require employees to receive the vaccine, and if so, how to go about it can be complicated and employers should be careful not to run afoul of state and federal anti-discrimination laws.  

Employers Can Require Vaccines, but Must Provide Certain Accommodations

With respect to federal laws, the Equal Employment Opportunity Commission (EEOC) has stated that employers are generally free to require employees to receive the vaccine, so long as employers consider providing accommodations to employees who cannot receive the vaccine because of a disability or sincerely held religious belief. Employees can support their request for an accommodation because of a disability by providing a note from their medical doctor. Employers who receive such medical documentation should generally assume that the employee has a legitimate medical condition that prevents him or her from receiving the vaccine.

Evaluating a request for an accommodation based upon a religious belief, however, is a more difficult proposition. Notably, the EEOC’s definition of religious belief includes “any moral or ethical beliefs as to what is right and wrong which are sincerely held with the strength of traditional religious views.”

Additionally, employers are generally required to assume that an employee’s claimed religious belief is sincere, though the employer can request additional supporting documentation if the employer is aware of facts that provide an objective basis for questioning the religious nature or the sincerity of the belief. Obviously, this is a thorny issue and employers should tread carefully when evaluating requests for accommodations based upon religious beliefs.

If an employee presents a legitimate request for an accommodation, the employer should engage in an interactive discussion with the employee in a good-faith attempt to find a solution to the employee’s inability to receive the vaccine.

Such accommodations might include allowing the employee to work remotely, allowing the employee to provide regular negative tests instead of obtaining the vaccine, or requiring the employee to wear a face covering while at work.

If there are no reasonable accommodations, an employer can terminate an employee. Employers should be cautious in taking such a measure, however, as doing so creates a significant chance of a discrimination claim.  

Be Cognizant of State Laws

Employers should also be cognizant of state laws when enacting vaccine mandate policies. Many states’ anti-discrimination laws track federal laws. In those states, employers can rely on the EEOC’s guidance regarding enacting vaccine mandate policies.

Some states, however, are enacting new legislation that restricts an employer’s ability to require employees to receive the vaccine. Florida, for example, enacted a vaccine passport ban that, at first blush, appears to only restrict a business’s ability to require customers or patrons to provide proof of vaccination.

However, Florida’s Department of Health recently relied on the new law to fine a governmental entity for requiring its employees to receive the vaccine. At this point, it is not clear if Florida’s Department of Health will attempt to extend the statutory vaccine passport ban to private businesses that attempt to require their own employees to receive the vaccine.

Nevertheless, this illustrates the need to review state laws when considering policies and the need to stay abreast of legislative changes.

Consider the Size of Your Business

While employers have the legal right to require employees to receive the vaccine (subject to the accommodations above), that may not necessarily be the best approach, especially in today’s job market. The vaccines have proven safe and effective, but a significant portion of the country remains skeptical of the vaccine.

In an already difficult job market, requiring employees to receive the vaccine may cause employers to lose employees and potential employees.

President Joseph Biden recently announced that he would require employers with more than 100 employees to require employees to provide proof of vaccination or a weekly negative Covid-19 test. While the final rule has not yet been issued and legal challenges will certainly be made, employers with more than 100 employees should begin taking steps to comply with President Biden’s vaccine mandate.  

Employers with less than 100 employees, however, must decide whether or not they need to require employees to receive the vaccine. A small employer with employees working remotely or away from others may not necessarily need to require employees to receive the vaccine.

On the other hand, employers with employees, who work closely with one another and/or customers, or employers who operate in the medical field, may need to require employees to receive the vaccine.

Ultimately, deciding whether or not to require employees to receive the vaccine should be made after careful consideration of the work performed, the likelihood of transmission and the anticipated reaction from employees.   

Enact Clear Policies Regarding Vaccine Requirements

If an employer does require its employees to receive the vaccine, it should enact a clear policy that informs employees what is required and why it is required. Employers should also obtain written acknowledgment of the receipt from employees. Moreover, employers should apply the policy consistently so as to avoid claims of favoritism or, even worse, discrimination.  

If an employer elects not to require employees to receive the vaccine, it can still encourage employees to receive the vaccine without running afoul of anti-discrimination laws. The EEOC has said that employers can offer employees incentives to receive the vaccine as long as the incentives are not so substantial as to be considered coercive.

Employers can certainly provide information regarding the vaccine, and can also provide gift cards (of a nominal amount), catered lunches, etc. Encouraging employees to receive the vaccine, without actually requiring it, may not be as effective in increasing vaccination rates, but this approach may be better received by an employer’s workforce and will not implicate anti-discrimination concerns that arise with a vaccine requirement policy.

This article originally published on HR.com on November 2, 2021 and is republished here with permission from the publication.