With a return to normal operations tantalizingly close, many businesses are considering a vaccine requirement as a condition of continued employment. Experts remain divided, however, about the legality of the approach, particularly while the U.S. Food and Drug Administration has permitted only three vaccines under limited emergency use authorization (EUA).
The U.S. Equal Employment Opportunity Commission (EEOC) has made clear vaccine mandates don’t violate federal antidiscrimination laws, so long as employers make reasonable accommodations for medical and religious restrictions against vaccination. But state and local common laws also must be considered.
As lawsuits wend their way through courthouses across the country, employers are left to balance the risk of litigation against workplace safety. Adding to the morass, the Delaware General Assembly is considering a bill that would prohibit employment discrimination based on vaccination status, although the chances of the measure becoming law are unclear. And indeed, studies show a significant majority of U.S. businesses don’t intend to impose vaccination requirements, perhaps because of:
- Inherent uncertainty about the legality of vaccine mandates under state law;
- Sharp social divides surrounding vaccination in the country; and
- Tight labor markets, which leave employees with many alternatives if they object to an employer’s policies.
Vaccination Incentives as an Alternative
As an alternative to vaccine mandates, some employers are looking at incentives to encourage employees to get the COVID-19 shots, especially for those who are on the fence. Although Delaware is doing its part through the DE Wins! program, employers are much more restricted in their ability to incentivize vaccinations in light of recent EEOC guidance.
The EEOC has indicated employer-sponsored vaccination programs likely involve the disclosure of confidential medical information protected by the Americans with Disabilities Act (ADA). As a result, any incentive program must be carefully designed to provide encouragement but “not [be] so substantial as to be coercive.”
What is “coercive”? That’s anyone’s guess. Both the Obama and the Trump administrations issued guidance intended to define legally permissible incentive programs, but both sets of regulations are now inoperative. It’s also unclear whether businesses are required to extend incentives to those who cannot be vaccinated for religious or medical reasons, to avoid unduly burdening members of those protected classes.
As a result, the safest course of action is to avoid incentives altogether or rely on small-value gift cards and marketing novelties. But who really needs more company-branded highlighters?
So, What Can Employers Do?
With vaccine mandates and incentives causing legal concerns, employers do have a few safer options to return to a prepandemic working environment:
Educational campaigns. The EEOC tells us educational campaigns are perfectly lawful. Encouraging employees to get vaccinated because it is the right thing to do (for themselves, their families, and those most at risk in our society) is an easy message to promote. And we should all be adding our voices to that choir.
More workplace perks. You can request proof of vaccination and grant greater liberties to those who have been vaccinated, including letting them resume work-related travel and move about the office without a mask.
Many employers are shying away from the distinctions, however, because they feel punitive to those who have chosen not to receive the vaccine. The prospect of relegating a small minority of employees to wearing a mask indefinitely feels somewhat unjust. It also creates something of a visual marker for vaccine refusal.
New safety rules. If you choose to beef up your workplace policies, be sure they include a process for documenting and tracking employees who have received the vaccine as well as clear disciplinary guidelines for those who violate the masking and social-distancing rules. With a process in place for reporting safety violations, you’ll be in a better position to avoid hallway confrontations and resulting harassment claims on the basis of an individual’s personal medical choices.
No shaming. Finally, keep in mind some employees may choose to continue wearing masks regardless of vaccination status. Although the Centers for Disease Control and Prevention (CDC) has loosened its masking guidelines, the safest course of action is to continue to wear masks indoors when in proximity to individuals outside of your household. No one should ever be shamed for their choice to be cautious as we exit a once-in-a-century pandemic and find our way back to a more normal life.
No Easy Solutions
In a nutshell, there’s no easy path back to “normal.” No panacea. Businesses and employees have faced nearly insurmountable obstacles, and the challenges aren’t over yet. As we walk the final mile, we should move intentionally and continue to extend grace and kindness to one another.
In our polarized society, it’s too easy to fall into patterns of distrust and anger. Shifting our focus to solution-based discussions and collaborative problem-solving avoids the traps and serves the dual needs of your business and your employees: to get back to work while balancing the wellbeing of the individual and society.
Lauren E.M. Russell is an attorney with Young Conaway Stargatt & Taylor, LLP. She can be reached at lrussell@ycst.com.