Key considerations and action items

Assuming that no other governmental guideline or court decision has been issued which would guide the action, if an employer makes the determination to require COVID-19 vaccinations as a condition to continued or new employment, the employer should develop policies and procedures to fully communicate and educate its employees. The following are considerations and action items for the employer to follow when establishing these policies:

If not currently provided, an update to the employee policy manual should be made to confirm the obligation of each employee to use all reasonable steps to keep other employees safe. This may currently include Centers for Disease Control and Prevention protocols for hand washing and certain safe distancing requirements. Even with a fully inoculated workforce, until medical experts provide otherwise, these protocols should be maintained. Amended language may confirm the action of the employer to require vaccinations to further the safety of its employees. Any vaccination communication should not guarantee its effectiveness, but should only confirm the medically provided information regarding the vaccine.

Decisions should be made to confirm if the full workforce will have mandatory COVID-19 vaccine requirements, or if only a portion of the employees will have this requirement. If only a portion of the workforce will have a mandatory vaccination, care should be made to review and modify, if necessary, job descriptions to support the need for vaccinations (e.g., travel requirements, direct interaction with customers, etc.). Unless there is a legitimate reason to not impose the requirement for all employees, conservatively all employees should be treated the same.

The employer's human resources department needs to be fully engaged and educated regarding these issues. As appropriate, individuals or groups within the HR department should be designated as the vaccination response team to ensure that a consistent and well-informed response is provided to all employee questions. Specifically, the HR department needs to understand how to receive and respond to any employee objections on the basis of ADA medical issues, Title VII religion concerns or for any other reasons.

Communication with the employer's employee medical health insurance provider should occur to confirm whether the vaccination will be covered and confirm if the employee will have responsibility for any portion of the cost. The employer may very well want to favorably consider covering the entire cost of the vaccination. With the vaccination, the productivity of the company should improve, and without cost being an obstacle, the employer may avoid certain employee's resistance.

For employers under a collective bargaining agreement, care should be made to understand the terms of such agreement to ensure that a mandatory vaccine requirement does not create a violation.

Lastly, the company needs a consistent approach to deal with employees who refuse the vaccine without a legal basis for the refusal. If such refusal will result in termination of employment, such termination action should be consistently applied. The company may choose to create a specific severance policy for terminated employees (conditioned on the employee's execution of a release and waiver of claims), but severance would not be required.

As employers continue to work through this pandemic environment, they are looking for positive occurrences to bolster work productivity and results. The release of an approved vaccine may assist this effort, but any action to mandate vaccinations by its employees should be approached with caution and only after appropriate legal review and analysis.

Instant Insights /

Can employers require employees to get a COVID-19 vaccine?

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