Employers are overcoming their reluctance to require that employees become vaccinated against the COVD-19 virus as a condition of employment. Microsoft, Google, Tyson Foods and many health care providers have announced they will require their employees who work on-site to obtain and provide proof that they have received a COVID-19 vaccination.
At least two federal courts and the U.S. Department of Justice’s Office of Legal Counsel have upheld employers’ rights to require vaccines as a condition of employment. In Texas, absent a bona fide religious objection or a disability or pregnancy-related condition, employers can mandate that their non-union employees become vaccinated and prove that they have done so as a condition of employment.
Before embarking on a mandatory vaccination requirement, an employer should consider whether it will face any negative consequences from imposing vaccination requirements for employees. Employers who are already having difficulty recruiting and maintaining talent may find that a mandatory vaccine requirement only exacerbates the problem. Amazon has expressed just such a concern. And, there may be key employees that have strong objections to receiving the vaccination and may refuse to comply with the employer’s mandate which could result in the key employee having to be discipline or taking his or her talents to a competitor.
Once the employer has determined it will make its vaccination requirement mandatory, clear and effective communication to the workforce is important. The communication should state why the company has elected to impose a mandatory requirement (i.e., for the general health and safety of the workforce). If there are conditions or limitations on the vaccination requirement (i.e., only for on-site work or access to company property), those conditions or limitations should be detailed in the communication. This communication should also advise employees on how they will confirm their vaccination status to the employer and what the employer will do with the information it receives. Keep in mind, the EEOC guidance states that inquiring into an employee’s vaccination status is not a medical inquiry but the information obtained by the employer on the vaccination status is confidential medical information that must be treated as such. The communication should also identify how and to whom requests for exemption from or accommodation to the vaccine requirement can be directed.
Employees should be given a reasonable amount of time for compliance. With the widespread availability of the various vaccines 30 days or more should be sufficient. A short time period is more reasonable if the employer is providing employees with time off (paid or unpaid) to get vaccinated.
Finally, like any work rule, employees should be told about the consequences for failing to comply with the requirement within the requested time period. Consequences might include discipline up to and including termination (or some lesser form of discipline such as unpaid suspension until the employee complies) or a requirement that the unvaccinated employees wear masks and undergo frequent testing. Employer should also ensure that they are consistent in their treatment of employees who fail to comply with the new rule.
And of course, employers should work closely with their labor and employment counsel in formulating and implementing a mandatory vaccination requirement.