28 Jun Mandatory COVID-19 Vaccination Programs: The Pros and Cons

By Susan Kreeger

Each day, Covid-19 raises unique challenges as employers attempt to maintain operations and keep employees safe. Learning about the virus is an ongoing process, with government leaders releasing new rules and guidance at a rapid pace. All this creates a fluid situation with few concrete answers.

Many hoped widely available vaccines, accessible under Emergency Use Authorization (EUA), would provide the solid ground necessary to return to normalcy. In many ways, that promise is coming to fruition. However, increased vaccination availability raises difficult questions for employers.

The main question in many employers’ minds is: Can we require our employees to get the shot? The Equal Employment Opportunity Commission (EEOC) says yes, so long as the implementation does not violate discrimination laws. Even with this guidance, many remain uncomfortable going in that direction.

After briefly discussing emergency use authorization and the legality of mandates, we offer pros and cons to think about before embarking on a mandatory vaccination policy.

What is Emergency Use Authorization?

The Food and Drug Administration (FDA) possesses the power to utilize EUA in response to health crises. This track allows the introduction of medical products to diagnose, treat, or prevent serious illnesses or conditions even though they have not undergone the FDA’s full approval process. According to the FDA, the lack of full review does not mean that these medicines are unproven or unsafe. Despite the truncated process, the agency vigorously assesses the medication or device’s safety and effectiveness.

May Private Employers Require Covid-19 Vaccinations?

The EEOC has repeatedly taken the position that mandating Covid-19 vaccinations is legal. The agency recently issued guidance explaining that such policies are permissible to prevent an individual from posing “a direct threat of health and safety” to others so long as employers abide by legal requirements for disability and religious accommodations. Despite this affirmative statement by a federal regulatory body, some in the legal community disagree, arguing that requiring employees to submit to EUA vaccination is unlawful.

The courts will get their chance to weigh in on this issue as employees around the country file lawsuits challenging employer-mandated vaccines. In one Houston case, a federal judge dismissed the lawsuit, ruling that the law does not preclude private employers from mandating EUA vaccinations. The employees vow to appeal this decision. You should closely monitor developments in this and other cases to assess how the results might impact decisions made about your work environment.

States Are Also Taking Action

The judicial process can be lengthy, and rather than wait for those decisions, several state legislatures and governors have enacted laws and issued executive orders on both sides of this issue:

• Prohibiting mandatory Covid-19 vaccines to return to work or attend school (e.g., Arizona, Montana)
• Outlawing discrimination based on vaccination status (e.g., Montana)
• Requiring that employers confirm proof of vaccination before allowing employees to return to the workplace or forgo a mask (e.g., Santa Clara County, California, Oregon, Washington).

As with everything Covid-19, things are proceeding rapidly on this front, and many states have legislation pending. The National Conference of State Legislatures monitors Covid-19 legislative activity. Before implementing a vaccine policy, you should review the laws in the states where you operate and consult legal counsel, where appropriate, to ensure compliance.

Evaluating the Wisdom of Mandatory Vaccination Policies

In addition to legal requirements, numerous factors contribute to human resources policy development. Considerations such as company culture, mission, and industry sector all play a role. The need to keep employees, clients, customers, and vendors safe is also significant. How companies weigh and address such factors differs based on business priorities.

The Advantages of Employees Receiving Vaccinations

The following list supports implementing mandatory policies.

• Supported by EEOC guidance
• Fosters a safe and healthy work environment
• Protects vulnerable employees
• Avoids contact tracing and long quarantine periods
• Promotes stable staffing levels due to fewer illnesses and need for time off
• Lowers employee anxiety about being in the workplace
• Provides a response to lawsuits claiming someone caught Covid-19 at work
• Exhibits good corporate citizenship – taking a proactive stance toward reaching herd immunity
• Allows employers to access a federal tax credit if they provide paid leave to get vaccinated
• Once the FDA grants full approval, challenges to mandatory vaccination programs will be less likely

This list may seem convincing, but a thorough review of this issue requires equal consideration of issues opposing such policies.

The Downside of Requiring Vaccinations

Despite the number of vaccine policy pros, there are several cons as well.

• Employee resistance (creating employee resentment)
• Need to establish a policy to address non-vaccinated employees
  • Exclusion from work settings, meetings, and gatherings
  • Termination
• Administration of the policy
  • Procedure for tracking and storing information
  • Process for accommodation requests
  • Increased costs
• Effect on business operations if a large number of employees or key players refuse vaccination
• New staffing needs due to turnover or exclusions from the workplace
• Adverse reactions to the vaccine
  • Lawsuit exposure
  • Coverage under worker’s compensation
• Other legal considerations
  • Discrimination claims based on a policy’s disparate impact on a particular group
  • Allegations of failure to accommodate disabilities or religious beliefs under Title VII and state laws
  • State laws prohibiting vaccine mandates or discrimination based on vaccination status
  • Collective bargaining obligations in unionized settings
• Workplace trends (recent survey data indicates that although most employers prefer that their employees get vaccinated, they will not require it)

These are uncertain times, and either path – to require vaccination or not – comes with some legal risk and employee relations challenges. To determine what makes sense for your workforce, you need to weigh your risk tolerance against the work climate you wish to create.

RealHR Can Help You Work Through This Process

Covid-19 vaccination is a hot topic right now. Before putting such a policy in place, management must think through the issue from all angles. Once you determine the direction for your company, clear and effective communication will be the key to maintaining a productive work environment. The professionals at RealHR can assist you at every stage – from analysis through implementation and communication and help you align your vaccination policy with your organization’s goals.

This blog should not be construed as legal advice.