CPAs and their clients have many issues to discuss before having full workforces return to their offices. Many decisions center around COVID-19 vaccinations, though there is not one office protocol used by all. Employers will need to carefully weigh whether a mandatory vaccine program is right for their organizations. While that decision will depend on a variety of factors, these six steps outline generally how to begin that evaluation process:
- Gauge the situation. Employers should always consider their employees prior to making any large workplace policy decisions. In the case of a vaccine policy, employers should reach out to employees to gauge how they feel about their safety. How many feel unsafe at work? Would a mandatory vaccine policy make them feel safer than a voluntary policy? What would it take to get them to receive the vaccination?
Similarly, employers should look to others in their industry to determine how vaccinations are being handled. If similar organizations aren’t adopting vaccine policies, it’s critical to understand why. While each workforce is unique, following industry trends can help employers with decision-making.
Lastly, employers must consider the potential for legal liability stemming from their decision. Both mandatory and voluntary vaccination policies come with inherent legal risks. Employers are encouraged to seek legal counsel when evaluating the best course of action for their organizations.
- Make the choice. After considering industry trends and surveying employees, employers will need to decide whether to adopt a mandatory vaccine policy, a voluntary policy or no policy at all. Each decision will come with consequences, so it’s important for employers to think carefully before this step and confer with all stakeholders, particularly legal counsel.
- Consider incentives. Once a policy is decided upon, employers should consider ways to incentivize employees. Regardless of whether vaccination is mandatory or merely encouraged, incentives could go a long way to getting employees on board. Some organizations are using perks such as extra paid time off to increase vaccinations. That being said, employers must be cautious when choosing to offer incentives. Offering certain incentives could potentially put employers at risk of violating the Americans with Disabilities Act (ADA), which prohibits employers from “coercing” employees to participate in wellness activities.
- Ensure resources are in place. Employees will undoubtedly have questions, especially if a vaccination policy is mandatory. HR should be prepared to answer these questions and provide applicable resources. Particularly, HR should know how to handle accommodation-related inquiries if employees seek exemption from the policy.
Communicate everything to employees. A workplace policy of any sort can only succeed with thorough communication. Employers must make employees aware of the policy and its requirements well ahead of implementation. Employers should consider a variety of communication methods to accomplish this goal. Examples include sending mail-home flyers, posting videos on an intranet site or hosting kickoff meetings.
- Implement the plan. Finally, employers will need to implement the plan. Details like the rollout timeline and how to handle employee accommodation requests should be decided upon prior to this step.
If an employer requires vaccinations (when they are available), they must respond carefully to an employee who indicates that they are unable to receive a COVID-19 vaccination because of a sincerely held religious practice or belief.
Once an employer is on notice that an employee’s sincerely held religious belief, practice or observance prevents the employee from receiving the vaccination, the employer must provide a reasonable accommodation for the religious belief, practice or observance unless it would pose an undue hardship under Title VII of the Civil Rights Act.
Courts have defined “undue hardship” under Title VII as having more than a de minimis cost or burden on the employer. Guidance from the Equal Employment Opportunity Commission (EEOC) explains that because the definition of religion is broad and protects beliefs, practices and observances with which the employer may be unfamiliar, the employer should ordinarily assume that an employee’s request for religious accommodation is based on a sincerely held religious belief. If, however, an employee requests a religious accommodation, and an employer has an objective basis for questioning either the religious nature or the sincerity of a particular belief, practice or observance, the employer would be justified in requesting additional supporting information.
If an employee cannot get vaccinated for COVID-19 because of a disability or sincerely held religious belief, practice or observance, and there is no reasonable accommodation possible, then it would be lawful for the employer to exclude the employee from the workplace. This does not mean the employer may automatically terminate the worker. Employers will need to determine whether any other rights apply under the Equal Employment Opportunity (EEO) laws or other federal, state and local authorities.