The Deafening Silence Around Employee Rights and Vaccination Requirements
Many businesses, including ETHIX360, are dealing with a myriad of issues around safely reopening their offices. Part of that process is actually reviewing jobs, using data collected over the past year where employees largely or completely worked from home, and determining if all employees need to come back to an office environment at all to be effective in their job. We relocated to a larger space and outfitted it with everything from oversized air handling equipment to maintain negative air pressure, to more space in general to accommodate social distancing. We also added a service to sanitize our facilities above and beyond normal janitorial services.
We’ve been getting ready, we brought back a core group (approximately 20% of staff) so that we could safely reopen, and we’re getting closer every day! In transparency, it will be months before we even consider a 100% return to the office. I want our employees’ comfort level to be high so that returning to work is not a distraction, but is a boost to morale, culture, and productivity.
Employee Vaccination Requirement Policies
We’ve been considering a lot of policies that should be revisited now that we have some lessons learned from this COVID chaos. That way, we will be ready when the time is right to hang a yellow ribbon on the front door. One of the issues we have been weighing is employee vaccination requirements. There is first the discussion of if we should, or even can, require COVID vaccinations before employees are allowed to come back to work. I’m sure those of you who deal with policy already realize the complexity of that question.
I think many businesses, ours included, are waiting on some sort of guidance from the EEOC, and that is where the deafening silence I referenced in this blog’s title comes from. For months now, the EEOC has been evaluating how a potential vaccine would interact with employers’ obligations under the Americans with Disabilities Act, Title VII of the Civil Rights Act of 1964, and the other laws the Commission enforces.
Not only is this not a clear-cut issue, but there are a lot of first-time issues that come along with it as well. For example, all three vaccines currently available in the United States are available through an EUA, or Emergency Use Authorization, as opposed to full FDA licensure. This is an important distinction from the regular flu shot, which can be mandated by employers. The flu shot is currently mandated by many in the healthcare arena, but rarely outside (although any employer is allowed to mandate it).
The prominent question that has never really been considered, and certainly not litigated, is requiring a vaccination that is under EUA. I suspect that the EEOC is treading very lightly on this one and that is causing the delay in guidance. I believe that once one or more of these vaccines receives full licensure, it will be easy for the EEOC to cite precedence and allow employers to require it. Businesses outside of healthcare may be more inclined to require this one because of COVID’s horrific impact on the economy which continues to cause long-term damage.
Even that comes with caveats such as employers abiding by any state or local laws, as well as providing “reasonable accommodations” to people with qualified disabilities and to those who have religious objections, as required by the ADA and Title VII, respectively. Interestingly, and I did not know this prior to researching this blog post, under the ADA, a vaccination is considered a medical examination that must be job-related and consistent with business necessity or necessitated by a direct threat.
Where Does This Leave Employers?
Unlike the EEOC, they should not just stick their head in the sand and be silent. I think there are several takeaways I would encourage employers to consider as they face this decision:
Use existing policies to your advantage. If you want to encourage employees to take the COVID vaccine but are uncomfortable requiring it, do you have a wellness program where a reward may be applicable? Most wellness programs already have various incentives for all sorts of healthy behavior. Can you just piggyback an existing policy or program?
Be careful if you piecemeal a program. For example, requiring the vaccine for employees that are customer-facing but not others. Some would see this as a reasonable accommodation, while for others it would appear discriminatory.
Consider a waiver process. If you require employees to complete and sign a form with some sort of waiver that compels them to explain specifically why they refuse the vaccine, many will see that as onerous and acquiesce to avoid signing forms and making statements.
Be prepared for employees to refuse. Recently, a survey conducted by the O’Neill Institute for National and Global Health Law at Georgetown Law School found that over 61% of employees would get a vaccine if employers recommended it. However, you should consider not simply your ability to compel or require vaccinations, but what will you do if employees refuse? It’s one thing if one or two refuse, but quite another if a mass of employees do.
I’m still not sure where we will land on this issue, but we are committed to encouraging all reasonable precautions to avoid a spread and to reduce overall community spread in every way we can. Whether we’ll require it prior to a 100% return from work from home to the office, well, I guess we’re going to stay silent on that too for a little longer.
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MEET THE AUTHOR
J Rollins is the co-founder and CEO of ETHIX360. J is a well known leader and innovator who has served on senior leadership teams ranging in responsibility from Chief Revenue Officer, Chief Marketing Officer, SVP of Product Strategy and Chief Operating Officer.
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At ETHIX360, our goal is simple: to provide an affordable, flexible, and comprehensive answer to employee communication, policy management, corporate training and case management on issues related to corporate ethics, code of conduct, fraud, bribery, and workplace violence.
