A vaccination policy outlines your company’s procedure for employee vaccinations and should be a key component of a comprehensive employee handbook. A simple but strong policy generally covers scope, requirements, and requests for accommodation.
Although some companies have recently made the news for their COVID-19 vaccine mandates (several even terminating employees for not complying), it’s long been legal for employers to require vaccination for their workers. According to the Equal Employment Opportunity Commission (EEOC), employers are entitled to require vaccinations for their employees since they have a responsibility to protect their workers from known dangers; however, they must also provide reasonable accommodations to employees precluded from vaccination for health or religious reasons.
Sections to Include in Your Vaccination Policy
Every time your business requires its employees to do something or limits their ability to do so, you need a policy. An effective policy will not only ensure fair treatment for all employees but will guarantee everyone understands it. Whenever you establish a new policy that impacts your staff, it is important to be honest and clear but also remain compliant with the law.
To guide you, here are necessary sections to include in your company’s vaccine policy.
Your policy must state who falls under the vaccine mandate and what vaccines apply. In most cases, you’ll want to clarify that only employees are subject to this policy. An updated vaccination schedule is essential, as well. That does not have to be a part of your formal policy but should be regularly reviewed and updated. You should also make it easily accessible for any employee to review.
The policy requirements section is the bulk of the document text and should include details about how the process works. You must specify what vaccinations you require and provide consequences for not getting them. The policy should also clarify how employees can provide proof of vaccination and that confidential information will be protected.
Requests for Accommodation
While the policy section is the bulk of your document, the requests for accommodation section is the most legally relevant part of the vaccination policy. Although the Americans with Disabilities Act (ADA) permits employers to mandate vaccines for safe working conditions, you must be prepared to deal with objections to your policy.
Vaccines may be a concern for employees with medical conditions or disabilities. When someone requests an accommodation due to a medical condition or disability, you must decide whether a direct and significant risk exists by evaluating four factors:
- Duration of the risk
- Nature and severity of the potential harm to all employees
- Likelihood that the potential harm would occur to any employee
- Imminence of the potential harm
This is a heavy weighing process that may take time to consider and will vary from vaccination to vaccination. It’s okay that you don’t have an immediate answer for the employee. Reviewing these accommodation requests on a case-by-case basis is important to ensure that you consider all factors fairly.
If you determine the employee poses a direct and significant risk to all employees by remaining unvaccinated, consider whether your company can make a reasonable accommodation. A reasonable accommodation is any change to the employee’s work duties, schedule, or environment that allows them to continue to perform the essential functions of their job. An accommodation is reasonable for an employer if it does not cause undue hardship.
In today’s work environment, remote work has become more accepted and manageable. Allowing an unvaccinated employee to work remotely could be a reasonable accommodation.
Title VII of the Civil Rights Act of 1964 requires employers to accommodate sincerely held religious beliefs unless it would create an undue hardship for the company. Courts have routinely held that an undue hardship is any accommodation that requires more than a small cost or burden on the employer.
When an employee objects to a vaccine based on a religious belief, it is in your best interest to assume the employee’s religious belief is sincerely held. You would, however, be justified in requesting additional information if you have legitimate reasons to believe the employee’s religious belief is insincere. Clergy may provide letters as part of genuine religious beliefs that detail reasons for objections to a vaccine. Such letters can provide additional perspective and information that can help you make your decision.
If you find the religious belief to be sincere, working from home could be an option here, too. For some jobs and employees, however, their presence at a physical work location might be necessary. Employees may request modifications to their job duties, but you do not have to comply as that would be more than a minimal request. In the event that you are terminating an employee for violation of this policy, be sure to document the interactive process you have undertaken to try and accommodate the employee.
Employees who have had the disease the vaccine is intended to prevent might claim they have natural immunity and should be exempt from the vaccine requirement. In most cases, getting the vaccine will actually increase an individual’s protection.
It is also extremely difficult to verify whether an employee has been previously infected. This is why I recommend employers not distinguish between employees who were previously infected and those who are simply not yet vaccinated. Under your policy, treat both as unvaccinated employees.
Employees might argue that providing their employer with medical records is a violation of the Health Insurance Portability and Accountability Act (HIPAA). However, HIPAA only protects a patient’s confidential health information from disclosure by professionals and companies in the healthcare industry.
Employers are free to ask and require a worker to disclose their vaccination status. This is how your company ensures a safe work environment for all employees. If an employee refuses to disclose and provide documentation of their vaccination status, treat them as unvaccinated.
How to Evaluate a Request for Accommodation
You must engage in an interactive process whenever an accommodation request is made. The failure to do so could lead to legal repercussions.
To determine if you can provide a reasonable accommodation, consider the following:
- The type of accommodation requested by the employee
- Their job title and description
- The duration of their request
- Whether the requested accommodation would eliminate the risk to the workplace
- Whether the requested accommodation would create more than a minor burden to your business
The last bullet point will most often allow you to deny an accommodation request. If an employee’s job requires them to work in person, allowing them to work remotely would mean changing their essential responsibilities, causing undue hardship to your company. It is also not your responsibility to accommodate an employee’s political, philosophical, or general objections to a vaccine.
COVID-19 and Some Required Vaccines
In the News: COVID-19 added a wrinkle to already existing company vaccine policies. Under proposed rules from the Biden Administration, nearly 100 million American workers would be subject to a new Occupational Safety and Health Administration (OSHA) rule that mandates all businesses with 100 or more employees require their employees to either get a COVID-19 vaccine or face mandatory weekly testing.
OSHA can create a new rule based on anticipated “grave danger” to worker safety. Any company that ignores this rule could face OSHA fines of up to $14,000 per violation. Especially for small businesses, figuring out whether you’re required to mandate vaccines under the Biden Administration’s policy can be confusing.
Two-thirds of American businesses fall into the small business category, where this rule applies. Many office-based employees and some employers don’t even realize they are subject to OSHA regulations. In short time, the majority of US small businesses will need to have a vaccination policy, which may be required well beyond COVID-19.
There are numerous vaccines in wide use today, some required by employers. These include:
- Hepatitis B
- Influenza Type B
- Seasonal Influenza
- Human Papillomavirus (HPV)
We discussed many legal implications above, but there’s one more worth calling out specifically: fairness. As a small business, you may not be able to avoid every legal headache and certainly cannot prevent an employee from filing a lawsuit. You can, however, take proactive steps to reduce the legal hurdles you face regarding your vaccine policy. You can do this by treating all employees fairly according to your policy.
Being fair, however, doesn’t mean that you have to treat every employee exactly the same. Depending on your business, you may even be able to separate classes of employees. This could give you the freedom to mandate vaccines for some types of employees (e.g., office workers) and recommend vaccines for other types of employees (e.g., warehouse workers).
If an employee violates your vaccination policy, there is legal support for terminating them. Courts have recently sided with companies that have terminated employees who refused to get a vaccine, per company policy. Exploring accommodation options before termination, however, will give your company better legal footing. Besides, you have a legitimate business reason for terminating them—unvaccinated employees make it harder for you to provide a safe workplace.
It’s cliche but bears repeating: treat all employees fairly. Your vaccination policy is important because it acts as your guide, giving you a process to follow. The best way to avoid legal headaches is to follow the policy in every situation and to engage in an interactive process with your employees when they request accommodation.