Employers worried about the safety of employees and clients, especially during the annual flu season, have moved toward implementing vaccination policies in the workplace. At the time of this writing, health officials are warning that early 2024 could evolve into a “tri-demic” as the flu, COVID-19, and respiratory syncytial virus (RSV) spread at the same time.
Is a Mandatory Vaccination Policy Necessary?
Lessons learned from COVID-19, and the seemingly unending risk of viral illnesses in the workplace, may lead employers to enact vaccination policies for the first time or expand those already in place. However, such policies aren’t to be taken lightly. There are several legal issues to consider before, during, and after the implementation stage. If you have implemented, or may consider implementing, such a program, read on for tips to keep in mind.
First, consider your business need for a mandatory policy. As an obvious example, the healthcare industry has been the vanguard of mandatory vaccination policies. Indeed, the Centers for Disease Control and Prevention (CDC) has recommended flu vaccination for all healthcare workers since 1981. Service industries that interact with many customers daily are another example.
In other lines of work, such as a manufacturing or an office-based setting, justification for a mandatory policy has historically been a tougher row to hoe. COVID-19 and the annual flu season illustrate, however, how even office environments can still be susceptible to the spread of a virus or another pathogen.
If you decide that a mandatory vaccination policy is desirable for your workplace, next consider what type of policy fits your particular needs. Some employers (such as hospitals or schools) often enact a broad policy requiring all employees to get a vaccination. Others only require certain segments of their workforce (such as those who regularly interact with patients or customers) to receive one, while still others simply “strongly encourage” vaccination. You should be prepared to articulate your business rationale for the policy if it’s ever challenged.
What Will It Take to Implement a Vaccination Policy?
The next step is to determine how to implement the new (or expanded) vaccination requirements. If your workplace is unionized, closely review any applicable collective bargaining agreements. Under the National Labor Relations Act, vaccination policies are a mandatory subject for bargaining. Without a waiver (which must be “clear and unmistakable” in the agreement), you can’t unilaterally implement mandatory vaccination requirements. Rather, you must provide the union with notice of the new proposed vaccination policy and allow an opportunity to bargain.
If you’re a nonunion employer, the path is easier. As with any policy change, however, best practices should involve notice to the affected employees and some sort of written acknowledgment. This can be done in one of several ways, such as through revision of or addenda to the employee handbook or issuance of a new written policy.
Regardless of your preferred method, make sure to distribute the new requirements in writing and get written acknowledgments from employees that they received (or have access to) and read them. Those acknowledgments will be key if the policy is ever challenged.
Are You Prepared to Defend the Policy?
In implementing a vaccination policy, be mindful of state and federal laws protecting against discrimination based on disability and/or religion. For example, most flu vaccines are produced using eggs. An employee could have an allergy to that (or another) component of the vaccine and object to being forced to receive it.
The law requires that a disability be accommodated unless it would cause an “undue hardship” on the employer, defined under the Americans with Disabilities Act (ADA) (and in states such as West Virginia that use the ADA as guidance for their state equivalents) as “significant difficulty or expense.”
An employee could also object to the vaccine on religious grounds. Most will point to a tenet of their faith that prescribes purity of body and/or forbids certain substances from entering it. Keep in mind, however, that some courts have also suggested that certain “sincerely held” beliefs or lifestyle choices that aren’t necessarily “religious” on their face, such as veganism, might still be protected under the “religion” clause. Thus, an accommodation must be offered for these objectors unless the burden would be “substantial.”
The COVID-19 pandemic produced a mixed bag in terms of acceptance of and resistance to vaccination. Rational or not, skepticism of vaccines continually ebbs and flows. So, the importance of being able to defend claims rooted in a mandatory vaccine requirement can’t be overstated. Indeed, in recent years, the Equal Employment Opportunity Commission (EEOC) has taken an aggressive stance on mandatory flu vaccine policies, vigorously pursuing employers that fire employees who refuse the shot, especially if the reasons were religious.
How Do You Enforce Your Vaccination Policy?
With the policy implemented and risks identified, how should your new vaccination policy actually work? The trick is the same as any other policy: Be consistent in application, enforcement, and consequences for noncompliant employees. If an employee objects on medical or religious grounds, promptly engage in the interactive process. Examples of potential accommodations could include an exemption from the policy, wearing a mask, or transfer to a position away from vulnerable patients/clients.
As with any accommodation decision, don’t brush off the request in broad strokes; ensure each objecting employee’s situation is evaluated individually.
Bottom Line
Navigating the competing interests of a vaccine policy—the safety of your workforce and customers vs. objection by skeptical employees or those unable to receive a vaccine for various reasons—can be tricky. Nothing is ever foolproof, but careful planning, implementation, and enforcement can help keep your policy from sneezing back in your face.
Mark C. Dean is an attorney with Steptoe & Johnson PLLC in Charleston, West Virginia, and can be reached at mark.dean@steptoe-johnson.com.