Nearly one year into the pandemic, employers continue to struggle. Layoffs have swelled. Offices sit empty while telework has exploded. In many sectors, remote work arrangements have become the norm for those who still have jobs.
Businesses are hopeful that the COVID vaccine will be a gamechanger, giving them a path to reopen. The rollout of the vaccine and when workers can get vaccinated is shaping strategies on bringing employees back to work safely. But for now, workplace return dates remain uncertain.
As the vaccine becomes more widely available, employers will have options. They’ll have to weigh the pros and cons of requiring workers to be vaccinated against taking a more hands-off approach. Guidance from the Equal Employment Opportunity Commission (EEOC) allows that an employer can require employees to get vaccinated as a condition of employment, subject to a few exemptions. But employers contemplating a mandate should make sure to determine whether any state-specific laws may limit their options.
Where vaccinations can be required, whether they should be largely depends on the nature of the business, company culture, the worksite and its workforce. If a mandate is imposed, reasonable accommodations will have to be made for those individuals who are unable to get vaccinated due to their disability or sincerely held religious beliefs. In some cases, difficult decisions may have to be made as to whether or when those individuals can return to work without posing a direct threat to themselves or others. If they cannot, employers will be pressed to explore alternatives such as permitting them to work remotely.
Employers that decide not to mandate may want to consider an incentive program to encourage vaccination. Although some businesses have already begun to explore or to offer incentives such as additional paid time off (PTO), gift cards, or cash bonuses to employees who get a COVID-19 vaccine shot, the issue of workplace incentives remains unsettled. The EEOC has yet to weigh in on vaccination incentives employers can provide without running afoul of applicable federal laws, leaving employers to proceed at their own risk. Given the uncertainty, many companies are taking a wait-and-see approach as the rollout of the vaccine continues.
In light of the legal and practical challenges surrounding these issues, employers should exercise caution when devising a vaccine policy. Regardless of whether employers mandate or incentivize vaccination, they can expect some pushback from employees who’ve become accustomed to working from home and may be hesitant to return to the office. To avoid potential legal pitfalls, businesses should pay particular attention to how to handle those who are unable or refuse to be vaccinated as they seek to reopen.