Mandatory vs. Voluntary COVID-19 Vaccination Policies: What California Employers Need To Know
Now that COVID-19 vaccines are gradually rolling out, employers are asking if they can – and should – require employees to get vaccinated and are considering what they can do if employees refuse.
Q: Can employers require employees to obtain COVID-19 vaccinations?
A: Likely yes, but employers must be prepared to accommodate employees with disabilities and religious objections, and comply with applicable meet and confer obligations and collective bargaining provisions.
In its most recent guidance, the U.S. Equal Employment Opportunity Commission (“EEOC”) made clear that an employer can (1) mandate that employees take vaccines and (2) keep unvaccinated employees out of the workplace if the employer determines that the unvaccinated employee poses a “direct threat” due to a “significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.” At the same time, employers must still provide reasonable accommodations and engage in the interactive process with employees who have disabilities and cannot take the vaccine or those with sincerely held religious beliefs in opposition to vaccination.
Q: Should employers mandate COVID-19 vaccinations?
A: While the EEOC Guidance provides a framework under which mandatory vaccination requirements may be lawful, employers still need to carefully consider (1) the benefits, risks and expenses that may accompany a mandatory vaccination policy and (2) whether requiring vaccination is truly necessary.
Employers with unions will be required to comply with applicable memorandum of understanding (“MOU”) provisions and satisfy meet and confer obligations for represented employees in order to mandate vaccinations. Careful attention should be placed on any rules or MOU provisions that may limit the ability to mandate vaccinations or prohibit the ability to change existing terms and conditions of employment without union agreement. All employers should consider that, under applicable wage and hour laws, if vaccines are mandated, the time it takes for an employee to get vaccinated should be treated as compensable work time. Similarly, any costs associated with getting the vaccine would be reimbursable business expenses.
Q: What happens if many employees refuse to be vaccinated?
A: Employers may be reluctant to discipline or terminate a large number of employees, and equally reluctant to create multiple individual exceptions that may lead to litigation. For example, reports are finding that 10% to 20% of health care workers are refusing vaccination, regardless of whether they have a reason to object based on disability or religion.
For employees with for-cause employment rights, employers need to comply with due process before taking corrective action against employees as a result of a refusal to be vaccinated. Because this is an untested area of law, employers should consult with legal counsel before considering corrective action.
Q: What other issues need to be considered?
A: Many important questions need to be answered, including will the vaccination policy be written? How will the employer collect and protect employees’ vaccination records? What are the risks to employees, the public, customers, or clients if the employer does not mandate vaccination? Would a voluntary vaccination policy be as effective? Can the employer offer incentives to encourage vaccination? Will employers continue to maintain health and safety measures such as masks and social distancing after employees are vaccinated? How should employers handle meet and confer or renegotiating existing MOUs?
Recorded Webinar on COVID-19 Vaccination Policies
Given the complexity of navigating federal and state laws, MOUs, personnel rules, and practical considerations, employers should consult legal counsel before creating and implementing a mandatory or voluntary vaccination policy. Our Labor and Employment Law attorneys are assisting California employers regarding all legal issues related to COVID-19 vaccines. Our team provided a webinar on February 3 to address the myriad COVID-19 vaccination issues, including how employers can meet EEOC requirements, increase workplace safety, and minimize risk.
Please see below for a list of articles and links in reference to COVID-19 vaccinations.
- “About half of the Santa Clara County Sheriff’s employees have declined vaccine,” San Jose Mercury News, 2/6/2021
- “Covid-19 Vaccine Hesitancy Presents Challenge for Herd-Immunity Push,” Wall St. Journal, 2/3/2021
- “42 Business Groups Urge EEOC To Clarify Legality Of Vaccination Incentives,” Law360, 2/3/2021
- “Vaccine Skeptics Join Forces With Antimask Crowd: Concern grows over coalition dedicated to what advocates call ‘health freedom’,” Wall St. Journal, 2/2/2021
- “Why Health Care Companies Are Paying Workers To Get The COVID-19 Vaccine,” Huff Post, 2/1/2021
- “Our opinion: Dubuque’s vaccine incentives plan needed vetting,” Telegraph Herald Editorial Board, 1/31/2021
- “Some Health-Care Workers Are Still Saying No to a Covid-19 Vaccine,” Wall St. Journal, 1/31/2021
- “North Carolina prisons offer incentives for offenders to get COVID-19 vaccine,” WYFF4.com, 1/30/2021
- “Sotomayor Denies Bid for Injunction From New York Families Seeking Relief From Vaccine Mandate,” com, 1/29/2021
- “OSHA Says Workers Should Wear Masks After Virus Vaccine,” Law360, 1/29/2021
- “McDonald’s to pay employees to get the COVID-19 vaccine,” Chicago Tribune, 1/29/2021
- “Davis Wright To Mandate Vaccine For In-Office Work,” com, 1/29/2021
- “COVID-19 Devastated Prisons. Now Some Inside Don’t Want the Vaccine.,” Vice News, 1/29/2021
- “Love’s Travel Stops Offers Monetary Incentive To Employees Who Voluntarily Get Vaccinated For COVID-19,” News9.com, 1/28/2021
- “Almost half of Iowa’s prison employees have refused COVID-19 vaccine, despite deaths,” Iowa Capital Dispatch, 1/28/2021
- “CEOs Confront Employees’ Covid-19 Vaccine Doubts, Going Into Myth-Buster Mode,” Wall St. Journal, 1/25/2021
- “Budweiser Skips Super Bowl Ad, Promises Vaccine Education Instead,” Wall St. Journal, 1/25/2021
- “United Airlines Looks to Require Employees to Get Covid-19 Vaccines: CEO calls on other companies to mandate vaccinations for their employees,” Wall St. Journal, 1/22/2021
- “Why Law Firms May Not Require Vaccine For Attys And Staff,” Law360 1/21/2021
- “Microsoft, Oracle and Salesforce join a push for digital vaccination credentials,” New York Times, 1/14/2021
- “Cash, Breakfasts and Firings: An All-Out Push to Vaccinate Wary Medical Workers,” New York Times, 1/14/2021
- “Sports Leagues Risk Labor Unrest By Requiring Vaccines,” com, 1/13/2021
- “Dollar General Will Pay Workers to Get a Covid-19 Vaccine,” Wall St. Journal, 1/13/2021
- “Vaccine rollout hits snag as health workers balk at shots,” AP News, 1/8/2021
- “Firms, Courts Face Worker Vaccine Bind Despite EEOC Guide,” Law360, 12/19/2020
- “EEOC Guidance Offers Blueprint For Mandatory Vaccinations,” Law360, 12/17/2020
- “Major CEOs signal Covid vaccine mandates could be on the way,” CNN, 12/16/2020
- “CLEAR adds COVID-19 Testing, Information Component to ‘Health Pass’,” Travel & Leisure, 10/7/2020