Understanding Employer-Mandated COVID-19 Vaccinations
Late last year, the first batches of COVID-19 vaccines became available in the U.S. While those being inoculated now are doctors, nurses and other frontline workers, in the coming weeks and months the vaccine will be available to all members of the public.
This has many employers wondering: Can I mandate my employees take a vaccine before returning back to work? And, if they refuse, what kind of rights do I have?
We sat down with Claudia St. John, president and CEO of Affinity HR Inc., to discuss what employers need to know when it comes to vaccinating employees and why they should start planning for it now.
BSCAI: Do you think it's best practice for companies to mandate or strongly suggest that their employees get vaccinated?
Claudia St. John: It's going to be a while before typical essential or non-essential businesses are faced with this question. I think what I want folks to know about is that regardless of their philosophy at this point, it's very clear from the Equal Employment Opportunity Commission (EEOC) that employers are within their right to require a vaccination as a contingency to either come to work or return to work.
Public health officials have pretty much said that employer-based vaccinations are going to be a critical part of our strategy for combating this, and certainly employers know that covert has the potential to really disrupt their business operations. So it is within any employers right to require that employees get a vaccine. That said, they have to provide a reasonable accommodation for those who cannot take a vaccine, either because of a disability or medical condition, or because they have a bonafide strongly held religious belief under Title VII of the Civil Rights Act that allows them discretion in that area. So they have to provide reasonable accommodation. But if they want to require a vaccine, they're within their right to do so.
BSCAI: In recent news articles, there have been reports of some people rejecting the vaccines because of personal feelings about it or because of a disability they might have. I'm an employer now saying 'I'm going to make this policy.' I know I have it within my rights to make this policy, but I'm going to make those reasonable accommodations and then it comes time to actually roll it out. And there are people who don't necessarily fall under that umbrella of a disability or a medical issue or a strong religious belief, they just don't want it. How do I deal with that?
CSJ: As a result of their decision to refuse that vaccine, you can not hire them or you can fire them. The EEOC has said — because it is such a critical public health emergency — that it is the employer's right to say: 'We will make the policy we want. We need to maintain a safe workplace, and therefore we will require everybody that can take the vaccine to take it.' If they choose not to take a vaccine for whatever non-protected right, then it's an employer's discretion to not hire them or to fire them.
BSCAI: How important is it to underscore that ability to say, 'If you don't get this and you don't have a protective right, we have the right to fire you?'
CSJ: This is an opportunity for us to prepare and plan in advance how we're going to respond to it. So whatever your decision as an employer is on vaccines, I would encourage you to start not necessarily with the stick, but with the carrot. That carrot could sound something like: 'We care about you. We care about your families. We care about our communities and we care about our workforce. As a result, we are going to encourage employees to take the vaccine as it becomes available. We hope we won't get to a point where we have to make employment decisions based on someone's willingness or lack of willingness to take a vaccine. But if we have to, we are within our legal right to make decisions about who we retain.'
Listen to the full conversation at bscai.org/contractor-connections-hub.
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