If your business is requiring in-person employees to get the COVID-19 vaccine, here’s how to discuss and promote your policy.
Updated 9/10/21
Small businesses with 100 employees or more may soon be required to mandate employee vaccines. That’s the top take away from President Biden’s newly released COVID-19 Action Plan. If the new rules are enacted businesses could also be required to provide paid time off for employees to get vaccinated and, in some cases, require masks in the workplace. These orders are expected to be challenged but if enacted could take effect within a few weeks. The administration is also requiring that federal workers and employees of federal government contractors be vaccinated, which takes effect in about 75 days.
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Employee vaccinations have been a widely discussed and contested issue regarding the return to the physical workplace. The Equal Employment Opportunity Commission (EEOC) has issued guidance stating that employers are allowed to mandate COVID-19 vaccinations for in-person employees (barring medical or religious reasons), but it can be a sensitive and polarizing topic. HR and business leaders will need to announce and enforce this policy in a way that doesn't alienate workers who may have strong opinions about getting vaccinated.
Here's how HR experts and business leaders recommend approaching mandatory employee vaccinations and discussing your policy in the workplace.
Under current Federal Equal Employment Opportunity laws, an employer may legally require or incentivize all staff members reporting to a physical workplace to be vaccinated for COVID-19. The exception is employees who opt out of the vaccine for medical or religious reasons, and in these circumstances, employers must provide accommodations compliant with the Americans with Disabilities Act and Title VII of the Civil Rights Act of 1964.
“Recent EEOC guidance … does permit mandating vaccines, providing accommodations are made,” said Carrie Hoffman, a partner at Foley & Lardner LLP. “We have been advising clients to incentivize vaccinations rather than mandate them, in order to avoid having to evaluate and respond to accommodation requests. The EEOC also provides that incentives cannot be coercive, indicating that employers should provide alternative work arrangements for those who cannot be vaccinated for whatever reason.”
Some local laws outside the EEOC’s jurisdiction may place some restrictions on employers that want to create a vaccination policy, so it’s best to consult a legal professional before creating a policy.
Employee vaccination is important so that everyone in the workplace feels safe and the overall office can maintain a standard of health. If everyone in the office is vaccinated, they can work in close quarters with minimal risk of getting themselves and their loved ones sick.
Most employers don't want their employees to feel forced into any decision, so if you have employees who are resistant to or hesitant about getting a vaccine, make a plan to educate them on the benefits of vaccination. Companies can provide educational materials and resources that employees can use to inform and educate themselves to make their own decisions.
To the extent that an employee seeks an accommodation from the vaccination mandate based on religion or a medical condition, employers should engage in an interactive process with the individual to discuss and propose solutions that will enable the employee to continue working safely and productively.
Carrie Hoffman, a partner at Foley & Lardner LLP
If your company is implementing a COVID-19 vaccination policy, here are some tips for delivering and discussing the news.
People are more inclined to do something when they understand the reasoning behind it. Have someone your employees trust explain the science of the vaccines and how getting one will specifically impact them, their work and the company at large.
“If your business is customer-facing, then I suggest framing it in terms of doing it to protect customers,” said Ryan Reiffert, a business, corporate and estate planning attorney with the Law Offices of Ryan Reiffert, PLLC. “Framing it in terms of business, customer protection, customer support, etc. might be more persuasive.”
When dealing with a sensitive topic such as vaccination policy, it's important that every employee is addressed in the same way, from the same individual.
“If your company chooses to mandate or incentivize the COVID-19 vaccination, it’s important to address all employees together in a neutral space, such as a meeting room or common area [so] you can make sure that no one feels singled out,” said Alison Pearson, head of HR at Hal Waldman and Associates.
In some cases, there may be consequences if an employee does not abide by the vaccination policy. Employees need to know what these consequences are and how they could impact the company.
“Put the employee in perspective by discussing the consequences of not being vaccinated and sharing the work environment with other people,” said Branka Vuleta, founder of LegalJobs.io. “Not being vaccinated not only affects the individual, but also the collective level. Within an office, you share [a space] with different people, some more susceptible to this type of virus than others.”
After everyone is made aware of the policy, all leaders and HR should make themselves available to discuss the policy. Some may falsely believe it's a government conspiracy, while others have general health concerns. Everyone is entitled to have their voice heard and open up a discussion about their concerns.
“Have one-on-one support available for any employee who may have questions or hesitations,” Pearson told CO—. “Many times, a disgruntled employee just wants to feel heard.”
Pearson advised listening to hesitant employees’ concerns, but remaining firm in implementing the company policy.
“The best way to avoid hostility later is to set clear expectations immediately, such as proof of vaccine status or disciplinary action for a false or lost vaccination card,” Pearson added.
If an employee chooses not to get vaccinated due to medical or religious reasons, it should be discussed privately upon the announcement of this policy. Talk to the employee about reasonable accommodations per the EEOC’s guidelines. For instance, you may ask non-vaccinated employees to remain as remote workers, wear a mask while in the office or get tested regularly for COVID-19.
“To the extent that an employee seeks an accommodation from the vaccination mandate based on religion or a medical condition, employers should engage in an interactive process with the individual to discuss and propose solutions that will enable the employee to continue working safely and productively,” said Hoffman.
Even if you're not mandating employee vaccinations or bringing people back into the office, there are still steps you can take to encourage and incentivize your employees to get the vaccine.
“Consider educating employees about the vaccinations and providing vaccinations on-site during working hours,” Hoffman said. “Additional paid time off (PTO) and compensation such as bonuses, gift cards or other incentives can encourage vaccinations as well; however, it’s important to remember that any remuneration offered in such a program must be included in the regular rate computation for nonexempt employees for overtime compensation purposes.”
No matter what you decide regarding your COVID-19 vaccination policy, it’s always wise to consult an employment attorney or HR expert before making any official announcements to your staff.
CO— aims to bring you inspiration from leading respected experts. However, before making any business decision, you should consult a professional who can advise you based on your individual situation.
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Published June 22, 2021
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