Before coming up with a COVID-19 vaccination policy, an employer should carefully consider the state of its current workforce, according to A. Kevin Troutman, partner at Fisher Phillips.
For example, if 50% of employees are already fully vaccinated, that may put the employer in a different situation from a readiness standpoint compared to a workforce where only a small portion of workers are vaccinated.
When it comes to putting pen to paper, Troutman said it’s important for employers to explain the rationale behind the their decisions. “What you’re doing ought to be driven by the goal of maintaining a workplace that’s safe for everybody,” he said, and that “everyone” could include customers, visitors and employees as well as their families.
Spell everything out
The policy should be written in a language, or languages, accessible to the employer’s workforce, Troutman added, and should identify the specific groups that need to be vaccinated and by which time.
Employers may need to keep in mind the differences between the different vaccines when setting deadlines. Some shots require two doses, for example. People are considered fully vaccinated two weeks after their second shot in a two-dose series or two weeks after a single-shot vaccine, according to the Centers for Disease Control and Prevention.
“Make sure employees understand what’s expected of them,” Troutman said.
Don’t forget accommodations
Any vaccination policy will need to include details outlining the process by which employees can request an accommodation from the policy, particularly if the employee is declining to get vaccinated due to a health condition or due to a sincerely held religious belief, according to Brett Coburn, partner at Alston & Bird. Both scenarios are addressed under the technical assistance published in May by the U.S. Equal Employment Opportunity Commission.
There are different ways to approach this step, Coburn noted. For example, an employer could require employees to be vaccinated in order to enter the workplace, but allow those who are unable to do so to work remotely. This approach may require some caution in the event that those who are not granted remote work question why their co-workers are treated differently, he said. On one hand, employees do not want to be perceived as treating employees unfairly, but they also need to be mindful of potential confidentiality issues that may arise when discussing individual employee cases.
Another move — one taken by the federal government — would be to implement a policy requiring unvaccinated employees to submit to regular testing in order to enter the workplace. But the logistics of this approach are “extremely difficult,” Coburn said, opening up questions not only about compensation for testing, but also about where and how often it will take place. The costs of testing for an extended period of time also may be prohibitively expensive for most employers, he added.
What does your jurisdiction require?
In some states, cities and other local areas, employers that mandate COVID-19 vaccination are required to compensate employees for the time it takes to get vaccinated, Troutman said, and they can include this information in their policies.
California, for example, requires employers to do so. The state’s Department of Industrial Relations explained that time taken for testing or vaccination, including time traveling and waiting for the test or vaccination to be performed, constitutes “hours worked.”
But employers can also set up parameters on that front, Troutman said, such as stating in their policies that they will pay for up to one or two hours of time or allowing employees to inform the employer if vaccination takes longer.
Employers that continue to provide paid leave voluntarily under the extended provisions of the Families First Coronavirus Response Act should note that the provisions cover leave taken to receive a vaccination or recover from side effects, Coburn noted.
The discipline question
Language matters when it comes to setting expectations, and the manner in which employers lay out disciplinary procedures for those who choose not to get vaccinated will depend on the specific circumstances in a given workplace, Troutman said. Yet, as with expectations that employees arrive to work on time, a policy that says the employer “expects” or “requires” vaccination for in-person work may be clear enough.
“If you say that, it certainly implies that we’re going to enforce this policy,” Troutman said. “If you put in the language that you suggest it’s mandatory, I think there’s a pretty strong inference there’s going to be discipline if you don’t follow the policy.”
Employers need to take a step back and ask whether they are willing to fire those who refuse, Coburn said. Outside of healthcare employers, he noted that the position of organizations had largely been against doing so. But a “sea change” represented by policies from well-known employers has moved the needle.
“If you’re going to say to employees that you must be vaccinated to work here … you better be prepared to terminate these people,” Coburn said.
That does not mean employers need to spell out word-for-word that those who choose not to get vaccinated will be fired. “This can be so volatile for some individuals that you want to try to make it collaborative,” Troutman said. “You don’t want to get into an adversarial posture with some of your employees.”
Use trusted sources
Employers can include informational links to federal, state and local public health sites, including that of the CDC, as part of their policies. Troutman recommended that employers consider rolling out the policy in an in-person or virtual meeting, or series of meetings, potentially with a doctor or medical professional who can explain the importance of vaccination. They also can encourage employees to speak to their doctors first.
The primary audience of such policies will be unvaccinated workers, however, and the group is unlikely to be swayed by information from CDC or public health departments, Coburn said, though citing these sources may show the employer’s thought more fully.
“An important part of this is just to listen,” Troutman said. If employers are hearing common concerns about vaccinations being repeated, they may be able to further refine their policies to focus on those concerns.