The article below is a summarization of the video above.
Can an employer mandate its employees to get the COVID-19 vaccine?
This is a really good question, and one that we have been receiving a lot lately. It is very exciting that it is even a possibility right now, and employers want to go the extra step perhaps in mandating the vaccine to make their workplaces as safe as possible. Generally speaking, yes, an employer can mandate that its employees get a vaccine. However, there are a lot of exceptions and limitations to keep in mind. For example, an employer may have to determine whether or not they can make a reasonable accommodation if the employee is prohibited from receiving a vaccine due to a disabling condition or has a religious objection to obtaining a vaccine.
Most employers probably should shy away from making a COVID-19 vaccine mandatory for its employees, unless there is a very specific safety hazard or risk that makes employees highly susceptible to contracting COVID in the workplace. Generally speaking, it is best to encourage employees to receive the vaccine, but not to mandate it.
Can an employer incentivize vaccines?
An employer who wants to proactively encourage its employees to receive the vaccine, is in a bit of a quandary right now. The Equal Employment Opportunity Commission (EEOC) has issued guidance making it difficult for employers to feel comfortable incentivizing employees to get the vaccine. Specifically, the EEOC restricts the information that employers can collect from employees as part of a wellness program and also restricts the types of incentives an employer can use to encourage employees to participate in a wellness program. The issue is whether or not an incentivized vaccine program that is not administered by the employer (meaning the vaccination shots are not provided by the employer) qualifies as a wellness program and, therefore, subject to the EEOC’s guidelines and restrictions.
It is best for employers to tread carefully in this area, and each employer needs to really consider the incentive that it wants to provide its employees. For now, it is best to go small. A couple hours of paid leave to receive the vaccination is reasonable. Some news stories have highlighted employers who are giving away televisions or days of vacation, but that is going to be more suspect and may run afoul of the the Americans with Disabilities Act (ADA). Employees who cannot receive the vaccine due to their disabling condition or religious beliefs cannot be disadvantaged by their employer because they are unable to participate in the incentive program. Thus, it remains a good practice to encourage employees to receive the vaccination, and probably fine to offer small incentives. But, any employer considering big ticket items, should proceed carefully and contact legal counsel to discuss the options.
Do employees still need to wear a mask after receiving the vaccine?
Once employees receive the vaccine, employers must continue to mandate that employees follow the applicable COVID-19 protocols in the workplace. Individuals still need to wear masks and wash hands frequently. Additionally, people still need to avoid close contact with other individuals at work. The CDC has released guidance suggesting that even though someone receives the vaccine, they can still carry and spread the virus. Until at least a vast majority of people have received the vaccine, we will not be able to prevent others from contracting the virus.
It is likely that current COVID protocols will continue to be mandated at least through the summer. But hopefully with the vaccine and falling infection rates, COVID protocols will relax so we can begin returning to a “normal” way of life.
Please contact your Carlile Patchen & Murphy attorney with any questions about employers’ and employees’ rights and obligations relating to the COVID-19 vaccine.
0 Comments