Questions linger about making COVID-19 vaccine mandatory

There’s an old adage that says just because you “can” do something doesn’t mean you “should” do it.

Experts are saying that might be the best thought process when companies are trying to decide whether to make getting a COVID-19 vaccine a mandatory requirement for employment.

The conversation has heated up since vaccines first began being distributed in January and has continued as more vaccines are approved and distribution begins. At press time, there were three vaccines for which the FDA had granted emergency use authorization: Pfizer, Moderna and Johnson & Johnson (which was approved in late February).

Employers are holding off, and experts say they probably should be, on implementing a policy on whether to require a vaccine, because the vaccine is not widely available to the general public yet.

And, with a fairly high percentage of the public hedging on getting the vaccine at all, the question executives are wrestling with is whether to make the decision on behalf of their employees.

Olivia Hankinson

Can employers mandate a vaccine as a condition of employment? Experts say they can, but question whether they should.

Olivia Hankinson, a labor attorney with Troy, Mich.-based Kerr-Russell, a full-service law firm representing clients across more than 20 practice areas, recently told participants in a Kerr-Russell webinar hosted by Corp! Magazine that the Equal Employment Opportunity Office has issued guidance that mandatory vaccination requirements are legal.

However Hankinson, who counsels and advises business owners, managers and human resources professionals on various labor and employment issues, said there are “important caveats” for employers who decide to make COVID-19 vaccination a mandatory requirement for employment.

“Although there are no federal or state laws specifically addressing whether employers can mandate COVID-19 vaccinations, the short answer to this question right now appears to be ‘yes.’” Hankinson told more than 300 participants in the webinar. “Most employers will be able to require most employees to be vaccinated.

However, there are some important caveats to it.”

One of the reasons an employer might want to make such a policy mandatory is to prevent an unvaccinated employee from posing a direct threat to the workplace. After considering such issues as the duration of the risk, the nature of the potential harm and the likelihood such harm would occur, among other legal requirements, an employer might consider using a mandatory policy to prevent the employee from working.

“Of course, excluding individuals is a pretty drastic step, and there are several measures employers will need to abide by before taking this route,” said Hankinson, a graduate from the University of Michigan Law School. “If you do find yourself in a position in which you think an unvaccinated individual is posing a threat to your workplace … I would strongly advise you … to make sure you’ve exhausted your legal obligations prior to removing or terminating that individual, as there are various protections contained in anti-discrimination statutes.”

Nancy Johnson, vice president for operations for Grand Rapids, Mich.-based HR Collaborative, a human resources consulting firm offering advice to small- and mid-sized businesses, pointed out there will be “competing factors and exceptions” to consider before companies decide whether to make such a policy mandatory.

Nancy Johnson

“The vaccine’s availability will be one of the most important,” Johnson said. “It doesn’t make sense for an employer to mandate a vaccine that isn’t widely available.”
One issue, according to Johnson, is that “there’s not a one-size-fits-all recommendation. Complicating the matter: the FDA’s emergency use authorization for the vaccines requires individuals to consent to the vaccination.

“If weighing whether to make vaccination a term or condition of employment, employers should also consider the implications under employment law and regulations such as the ADA, Title VII, OSHA, Collective Bargaining Agreements, and other privacy laws,” Johnson said. “(But) even if an employer wanted to make it a condition of employment, it’s not a feasible option right now.”

Hankinson suggested there are three types of policies employers might consider with regard to COVID-19 vaccinations:
• Mandatory, after evaluating the work force and consulting with their legal teams and union bargaining units, if applicable.
• Voluntary — Hankinson said a voluntary vaccination policy, which strongly encourages but doesn’t require employees to be vaccinated, “might be a good starting point” for many employers, particularly those who have work forces likely to readily volunteer.
But with vaccines being so new and Americans being fairly skeptical — a New York Post poll in February showed as many as 51% would hesitate to get one — many employees may be hesitant to obtain the vaccine.
“Implementing a voluntary policy rather than a mandatory one may be better for morale,” she said.
Even with a voluntary policy, the employer should still supply employees with resources or a way to obtain the vaccine, Hankinson suggested.
• Employers not confident a voluntary program will work might try offering some kind of financial incentive to employees who obtain the vaccine, Hankinson said.
She pointed out many companies are offering additional compensation to employees who choose to be vaccinated, primarily providing employees with one-time additional pay, a one-time bonus or offering an additional day or multiple days of paid-time-off or vacation.

“One of the major benefits of an incentivized vaccine policy is that it may encourage more employees to obtain the vaccine than would have otherwise,” Hankinson said. “Therefore, it could provide a safer working environment for your work force.”

She did caution employers who go this route that they’d have to circle back to employees who obtained the vaccine under the “voluntary” policy to make sure they get the same compensation as employees who got the vaccine under the incentivization policy.

Regardless of the policy companies put in place, Hankinson said the first step should be an “individualized assessment” of the work force to determine whether there’s a significant risk of substantial harm to the health or safety of others if employees aren’t vaccinated.

“If you have a workforce which is entirely remote … employees will probably not pose a direct threat to their coworkers, Hankinson pointed out. “So you should probably hold off on a mandatory vaccination policy.

“If, on the other hand, your workforce is split between employees who are required to perform in-person services and those who can continue to work remotely, you may wish to consider limiting your vaccine mandates to those employees who are reporting for in-person work,” she added. “Those employees are most at-risk for getting COVID-19 at the workplace.”

The incentive route is the one Michigan Manufacturers Association, whose website describes the organization as the state’s “leading advocate focused solely on securing a prosperous future for Michigan manufacturers through effective advocacy, meaningful education and strategic business services” is taking.

John Walsh

MMA President/CEO John Walsh said that urging is based on advice from conversations and feedback from members.

Those incentives, he said, could include additional PTO or the ability to return to the workplace sooner (for those non-production employees working from home).
“One positive from COVID has been a strong level of communication between the employer and the employee, as well as with regulators,” Walsh said. “As a result, there is a general sense that a mandate will not be necessary. In fact, some of our members believe that it would be counterproductive.

“I’m optimistic this approach can work, having watched the industry successfully respond to the challenges created by COVID from the beginning,” Walsh added. “Manufacturing was one of the first industries to return to work (following an early stay-at-home order) and has done so both safely and productively.”

Hankinson also pointed out that union shops would need to take up negotiations over potential vaccine policies with their bargaining units.

Walsh, who practiced corporate law for years and spent time in the state Legislature, said there’s “no common thinking” about making vaccinations a condition of employment, but agreed with Hankinson’s union assessment.

“Some practitioners have concluded that employees may have statutory and constitutional protections available to them; others believe the laws favor an employer; and still others point to collective bargaining agreements and their impact,” he said. “One common concern shared by the practitioners I’ve spoken to has to do with employer liability in the event that one might require inoculation as a condition of employment and an employee suffers an adverse response to the vaccine.”
HR Collaborative’s Johnson said employers should already be considering at least some of the following:

• Creating a remote worker designation process to prioritize classifications of employees for vaccination. (Keep in mind, local health departments may dictate which employees should get vaccinated first.)
• Defining your process for reasonable accommodation requests for vaccine exemptions if you’re subject to the ADA. Also, determining what additional PPE would be needed for those who receive an exemption.
• Developing a vaccine communication plan with clear messaging.
“Employers can … begin thinking about their potential approach and related process,” Johnson said.