Understanding COVID-19 Vaccine Mandates and Requirements

In recent weeks, the news headlines have been filled with stories concerning vaccine mandates, largely in response to the Delta variant. Some colleges and universities are requiring the COVID-19 vaccine for any student on campus. Several states have implemented a requirement for workers to be vaccinated or receive regular COVID testing. Employers in the private sector are taking similar measures. One private-sector employer has also introduced a health care ‘surcharge’ for unvaccinated employees. Should the marina or boatyard implement a mandatory vaccination policy for employees? Many factors will influence the decision to implement such a policy.

Considerations Before Asking About Vaccine Status
Late last year, the EEOC issued guidance making it clear that asking an employee whether they are vaccinated is not an inquiry that violates the Americans with Disabilities Act (ADA). However, before you begin asking employees about their vaccine status, there are several things you should consider to avoid violating state and federal laws. It is important that you understand whether state or local laws prohibit or require inquiry on vaccination status. In Montana, for example, lawmakers recently enacted a statute prohibiting employers from inquiring about, or requiring, vaccines. In contrast, Santa Clara County, California requires that all businesses located within the county inquire on the vaccination status of their employees. Prior to asking employees about their vaccination status, make sure you have a business reason for doing so and the inquiry is related to the job. There are many legitimate reasons for making the inquiry, including if your organization has mandated that some or all of your employees be vaccinated.

If You Decide to Mandate Vaccines
If you decide that now is the time to impose a vaccine mandate on your workforce, here are four steps you should consider:

Spend time considering how your employees are likely to respond to the policy, including how you will handle pushback. Anticipate and prepare for certain levels and forms of anxiety and/or resistance.

Figure out the best way to communicate your policy to employees, including how much notice to provide before implementing the requirement, how proof of vaccination will be kept, and who within the company will have access to the confidential information.

Consider related logistics, including compensation issues that may be implicated for the time spent traveling to and receiving the vaccine and any related reimbursement costs. Make sure you also understand when employees are entitled to be paid for their time, such as supplemental paid sick leave for time taken to receive the vaccine or to recover from vaccine side effects.

Develop a robust and clear reasonable accommodation policy to address religious and disability issues. Take special care to communicate and administer the accommodation process in a thoughtful way, with emphasis on individualized, confidential consideration of each request.

And if You’re Not Ready to Impose a Mandate…?
For those employers still not ready to require their workers to get inoculated against COVID-19, there are at least four other options to consider.

You could launch an information campaign, driving to improve vaccination rates by offering targeted educational opportunities to your workers about the vaccines. Many people are flooded with disinformation about COVID-19 vaccines from social media, disreputable news sources, and word of mouth, and such a campaign might be of critical assistance.

You could offer workplace incentives to any employee who can prove they are fully vaccinated. The most common incentives employers have offered include cash, gifts, or paid time off. Thanks to clear guidance from the EEOC earlier this summer, you have simple directions to ensure you don’t run afoul of any discrimination laws if you decide to offer incentives.

You can require all non-vaccinated personnel to be subjected to regular COVID-19 testing to ensure the highest level of workplace safety.
You can also require those who do not prove vaccinated status to comply with additional safety restrictions as necessary to maintain a safe working environment. These can include renewed masking requirements, social distancing rules, restrictions on business-related travel, and other concepts relevant to your work environment.

The Bottom Line
Developing and implementing a vaccine policy or incentive program can be challenging for the small business owner. The policy requirements are further compounded by a large segment of the workforce that may be minor children. If considering a vaccine policy or incentive plan for your workplace, one should consult with a labor and employment attorney.