Even before the recent uptick in Covid-19 cases, more companies were contemplating mandating the Covid-19 vaccine for employees.

With the Delta variant causing a spike in cases — and turbulence in the stock market — experts believe more employers are likely to implement mandates.

For many businesses, it’s likely to be a controversial decision. Covid-19 is a sensitive subject on numerous fronts and vaccine mandates present both practical and legal challenges.

“I think mandatory vaccination is not a popular position to take. But it might be something where popularity gets overruled by necessity,” said Ryan Rivas, a partner at law firm Hall Booth Smith PC, noting that health care providers are likely to be among the early adopters.

Several hospital systems already require the vaccine. Last week, Memphis, Tennessee-based St. Jude Children's Research Hospital said employees will be required to be vaccinated by Sept. 9, specifically citing rising cases and the Delta variant. Experts have told The Business Journals they believe other industries will eventually follow suit, with some choosing to mandate the vaccine as a condition for returning to the office.

If your company wants to implement a mandate, experts say there are some best practices to follow.

1. Understanding the Covid-19 vaccination exemptions

While federal guidance on the vaccine front has often been unclear, employment law attorneys say there is nothing in federal law that would preclude an employer from mandating the vaccine — even under emergency-use authorization from the Food and Drug Administration.

Experts say a federal court’s recent rejection of a lawsuit filed by Houston hospital workers challenging the vaccine mandate was a milestone that could lead to a wave of mandates.

“The Texas decision has been a lightning rod for everybody,” Rivas said.

However, there are exceptions employers need to be aware of. Federal law includes exemptions for individuals with health conditions or religious beliefs that would preclude a vaccine.

Julia E. Judish, special counsel at Pillsbury Winthrop Shaw Pittman LLP, said employers also need to be aware of state or local laws that could prohibit a vaccine mandate — particularly those with large workforces across many states and municipal borders.

For example, Judish said Montana recently enacted a law that makes vaccination status a protected characteristic like race or gender. Under the law, Montana employers can’t refuse employment to a person based on vaccination status. They also can’t mandate the vaccine under emergency-use authorization.

In other states, however, employers can terminate an employee for refusing the vaccine unless they have a legally protected exemption.

“Employers should carefully consider whether they want to take that step, however, particularly if employees have been effectively performing their duties remotely, or if a significant percentage of the workforce has resisted getting vaccinated against Covid-19,” Judish said.

For companies with union employees, collective bargaining agreements could also forbid a vaccine mandate or even asking about vaccination status.

2. Addressing exemptions

One reason many companies initially shied away from mandates is to avoid the often-complex processes that come along with assessing exemptions.

Employment law experts say it’s often an awkward and difficult task to try to determine if an employee has a sincerely held religious belief that would preclude a vaccination or if they simply don’t want to be vaccinated and are using religion as an excuse. Assessing exemptions for medical reasons carries similar hurdles.

In a tight labor market with a high threat of turnover, it's simply a conversation many employers don't want to have.

Judish said the Equal Employment Opportunity Commission requires employers to engage in an interactive process to determine if there are reasonable accommodations, such as continued telework, for employees who cannot be vaccinated for health or religious reasons.

“But if the employee’s unvaccinated status poses a direct threat to the health and safety of themselves or others that cannot be adequately mitigated through reasonable measures that do not pose an undue burden on the employer, the employer does not have to allow the employee on-site,” Judish said.

3. Be consistent

To avoid discrimination claims, experts say companies with a vaccine mandate need to be prepared to enforce the rule consistently.

That means a business needs to consider whether it would really fire a top performer for refusing a shot — a practical question that has led many employers to encourage, rather than require, the vaccine.

“As with any termination decision, there are risks of discrimination suits if an employer terminates an employee for violation of a policy but does not terminate similarly situated employees in a different protected class for the same policy violation,” Judish said. “There is also an employee morale component, as employees expect their employers to act fairly.” 

She said the crux of the issue is whether the inconsistent treatment is justified by important differences between the two employees’ situations, which is one reason experts say companies also need to be consistent with which employees at a business are required to get a vaccine. For those workers, it's also important to have a legitimate reason for requiring it.

Judish said vaccine mandates should be limited to employees working on-site, engaging in business travel or having in-person meetings.

“Employers would have difficulty identifying a legitimate work-related reason to require vaccination of employees who permanently work from home, without in-person work interactions,” Judish said.

4. Talk with your employees

With vaccines being a sensitive subject, experts say it’s a good idea to gauge the lay of the land before implementing a mandate.

Judish said employers may want to anonymously survey employees first to learn the percentage of employees who are vaccinated or plan to be compared to the percentage of employees who are resistant to getting the vaccine.

That could help employers see if they are preparing to adopt a mandate policy that could potentially require terminating a substantial percentage of the workforce, Judish said.

In the current labor market, some experts say the threat of turnover is a deterrent to vaccine mandates.

Getting feedback from employees can also help companies determine if there are other factors at play in an employee’s vaccination status that a company could assist with, such as granting paid time off or aiding access to the vaccine.

While companies can generally ask about a worker’s vaccination status, subject to state and local laws, experts say employers should be careful with follow-up questions to avoid potential discrimination claims.

5. Document. Document. Document.

Rivas said employers — especially those in health care – need to be heavily focused on documentation.

If litigation arises about a mandate-related issue, having that documentation could prove pivotal.

“There’s the old adage, 'If you didn’t document, it didn’t happen,'” Rivas said. “I’ve always told my clients, ‘The stronger we are is by the strength of our documentation.'”

Of course, that documentation comes with confidentiality and privacy requirements that employers need to follow.

Judish said employers should ensure they comply with medical privacy laws for vaccination information and for accommodation requests. Experts say that information needs to be stored carefully to maintain confidentiality, and employers should also be careful discussing information related to an individual's vaccination status to avoid disclosing private medical information.

Rivas said employers that are also health care providers, which are subject to the federal Health Insurance Portability and Accountability Act, or HIPAA, need to be particularly mindful of privacy requirements.

Source: https://www.bizjournals.com/pacific/news/2021/07/19/no-jab-no-job-covid-vaccine-mandate.html?utm_source=st&utm_medium=en&utm_campaign=ae&utm_content=hi&ana=e_hi_ae&j=24497540&senddate=2021-07-19