In December, we discussed COVID-19 vaccinations in our article titled “EEOC Issues New Guidance Regarding COVID-19 Vaccine Mandates in the Workplace.”  We recently reviewed the topic of COVID-19 vaccinations and would like to provide additional clarification for employers.

One of the major issues surrounding COVID-19 vaccinations is whether vaccinations may be mandated.  As early as 1905, the Supreme Court held in Jacobson v. Massachusetts that a state may mandate vaccinations as an exercise of police power.  Typically, vaccination mandates exist for the purposes of education law, international law, and labor law.  There are three exemptions to such mandates:  medical exemptions, religious exemptions, and philosophical exemptions.  While all states have medical exemptions to mandatory vaccinations and all but six states recognize religious exemptions, only a minority of states maintain philosophical exemptions to vaccinations.

An employer is entitled to mandate vaccinations for some or all employees.  However, all similarly-situated employees must be treated the same.  For example, an employer may mandate vaccinations for all employees who travel or for all employees who regularly interact with clients.  Furthermore, the EEOC issued guidance stating that vaccination mandates are subject to the Americans with Disabilities Act (ADA) and Title VII of the Civil Rights Act of 1964.

To comply with the ADA, an employer must provide an accommodation for an employee with a medical exemption, unless such accommodation would pose an undue hardship on the employer.  To comply with Title VII, a reasonable accommodation must be offered to an employee with a religious exemption.  An employer may not require a statement from a religious authority on the need to remain unvaccinated, because this constitutes a violation of equal protection under the law.  An employer should also remain aware that retaliation against employees who protest vaccination mandates is a violation of collective bargaining rights under the National Labor Relations Act (NLRA).

If an employer chooses not to exercise vaccination mandates, the employer may provide incentives for employees to get vaccinated.  However, the EEOC warned that offering incentives may be coercive if the vaccination is not given by a third party.  To avoid risk of coercion, an employer may offer incentives to both vaccinated and non-vaccinated employees.  For example, incentives may be offered for receiving the vaccination or for watching a health safety video.

An employer may also help facilitate the vaccination process by providing an on-site vaccination clinic or by helping with scheduling vaccination appointments and transportation to appointments.  An employer may also consider having a point person who serves as an in-house source of information related to COVID-19 vaccinations.

Furthermore, an employer should implement best practices by maintaining diligent recordkeeping on employee vaccinations.  Vaccination records should be password protected and separate from other employee records.  Such records are especially important because some vaccinations require booster shots, and employers need to be aware of vaccination timelines to ensure that booster shots are received as needed.

Finally, if an employer deems it wise to mandate or incentivize vaccination for its employees, then the employer must have a written vaccination policy, and this policy should be included in the Employee Handbook and distributed to employees.  Even if an employer decides that COVID-19 vaccinations are not necessary, this too should be provided for in a written policy.  Lastly, employers should schedule training sessions to communicate the company vaccination policy to employees.

If you are in need of assistance in updating your Employee Handbook, please contact one of the attorneys in our Employment Law Group at EmploymentLaw@c-wlaw.com or 1-888-488-2638.