Many financial planning firm owners we talk to are all wondering the same thing, “How do I ensure all of my employees become vaccinated?” Amid another huge wave of COVID-19 cases and the spread of different virus variants, vaccination efforts are becoming more urgent. Many questions are arising for employers regarding if or how to support vaccination efforts and what risks they take with mandating vaccination for their employees. It is important to employ a solid vaccination program that carries low risks and is well within your rights as an employer. Currently, vaccination programs are not required under federal law, but could change at any time so always be sure to check for any state or local requirements. President Biden recently mandated vaccines for all federal workers and companies with 100 or more employees.
Generally speaking, any employer can mandate that employees receive the COVID-19 vaccine. Although there is no federal law that requires employers to vaccinate all employees, there are laws that could be protecting those employees that choose not to get vaccinated. Under the Title VII, Civil Rights Act of 1964, as amended, employers are required by law to provide reasonable accommodations to employees whose sincerely held religious beliefs prevent them from taking the COVID-19 vaccine. According to the Americans with Disabilities Act(ADA), employers are required by law to provide reasonable accommodations to employees with underlying disabilities that prevent them from taking the COVID-19 vaccine. Before putting a vaccine mandate in place, it is important to consider if an employee cannot meet the requirement of being vaccinated, will it pose a “direct threat” to business operations.
You have decided to mandate vaccination, now what? Below we will outline the top six best practices we recommend setting a vaccine mandate into practice.
- Leadership should be the first to commit to being vaccinated. Remember to lead with empathy, listen openly and respectfully to the voice of your employees. Keep a non-judgmental point of view with addressing employees regarding their vaccination concerns.
- Allow time for vaccine confidence to grow. Reach out to organizations and individuals who are well respected in the employee communities to assist with building confidence of those employees who are still hesitant about COVID-19 vaccinations. Employees are likely to become more confident as they witness their co-workers and those that they respect getting vaccinated. Hosting an educational session at the office could prove to be beneficial as well. If you are finding it difficult to approach your employees to ask current vaccination status. Try the example below:
- Ex. What not to ask: Why have you not been vaccinated?
What to ask instead: We have employed a vaccination strategy to achieve 100% vaccinations for everyone in the office. If you are not currently vaccinated, do you have any opposition to this strategy?
- Offer cash and non-cash incentives to vaccinated employees. Consider a separate non-punitive paid sick leave for employees with signs, symptoms or positive diagnosis of the virus after vaccination. When offering such incentives, however, be mindful of the appropriate tax treatment, as well as ERISA compliance and Health Insurance Portability and Accountability Act of 1996(HIPAA) privacy.
- Due to the unknown and unforeseen side effects of the vaccine, try staggering employee vaccination to avoid workplace shortages. This may prove to be most beneficial when employees are receiving a 2-dose vaccine as the side effects are more severe following the second dose.
- As of right now requiring proof of vaccination is a matter of state or local applicable law. In general you may request employees to provide proof that they have received vaccination, however, you cannot mandate that the employee provide any medical information as a part of proof supporting their claim for exemption.
- Ex. What not to ask: Will you provide me proof of your vaccination status?
What to ask instead: If we offered a safe and confidential method, separate from your personnel file to store a copy of your vaccination card, would you be comfortable providing us with a copy?
- Send out a memo to employees about the upcoming vaccination policy allowing them at least 60 days to review and make the best decision for their individual circumstances.
Key considerations for employers who have chosen to implement a vaccination mandate includes constraints around supply and demand, business operational challenges and evolving changes around health policies. The bottom line is each business is different. Unfortunately, there is not a “one shoe fits all” approach when highly politicized issues like the CoronaVirus vaccine are evolving daily. We suggest conducting a thorough assessment of your firm's potential workplace hazards related to COVID-19 to create the program that best fits your company’s needs. Keep in mind that it is always good practice to consult with both in-house and outside counsel when rolling out this type of policy.