For months, the Center for Disease Control (CDC) has recommended that individuals become vaccinated to prevent severe illness, hospitalization, and death from COVID-19. The cry to increase the vaccination rates nationwide has increase suddenly and dramatically, due to the widespread emergence of the highly contagious Delta variant. This new variant led the CDC to recently change its COVID-19 masking guidance for vaccinated employees and led many cities, including the City of Atlanta, to issue Executive Orders directing all persons, both vaccinate and unvaccinated to mask-up indoors in compliance with the new CDC Guidance.
Now that the COVID-19 vaccines are widely available for individuals age 12 and older, and are believed to be the best protection in maintaining a safe and healthy work environment, employers are seeking legal options to increase the percentage of their employees who get vaccinated. Across the country, private and public employers are implementing a variety of COVID-19 policies and practices to increase the vaccination rates for their workers. Some of the most popular alternatives are discussed below. Figuring out which alternative may work best for your company may depend on a variety of factors, including the demographics of your workforce, the willingness of your workforce to get vaccinated, the industry/sector of the business, and the prevalence of COVID-19 in your area.
We have identified several alternatives for employers to consider. Regardless of which one you choose, it is important that employers educate their workforce about the CDC guidance regarding COVID-19 and available vaccines, be available to answer questions and debunk myths related to the virus and the vaccine, and provide resources for vaccination centers and testing, if needed. For example, employees need to know that the COVID-19 vaccine is safe and effective and that over 346 million doses of COVID-19 vaccine have been administered in the United States through August 2, 2021. In addition, the vaccines have met the Food and Drug Administration’s (FDA) rigorous scientific standards for safety, effectiveness and manufacturing quality needed to support emergency use authorization (EUA). Furthermore, the CDC reports that less than .004% of those fully vaccinated have subsequently been hospitalized with COVID-19, and only .0001% have died.
Employers should use a variety of oral and written methods tailored to their business to provide employees with information. Methods of distribution may include informal or formal information, question and answer sessions, mass emails, videos or allowing employees to ask questions confidentially.
Alternative #1: Implement a Mandatory Vaccination Policy
As discussed in prior Employment E-lerts, many companies including Facebook and Google, are implementing mandatory vaccination policies in the workplace. We expect this trend to continue, fueled by the federal courts’ dismissal of recent lawsuits challenging COVID-19 vaccine mandates, and the recently published U.S. Department of Justice (“DOJ”) guidance that made it clear that public and private entities can enforce vaccine mandates without the risk of legal exposure or liability.
Given the trepidation that many individuals have about COVID-19 vaccines, it is important that employers institute a clear and effective information campaign to ensure employees are well informed about COVID-19 vaccines, and understand the purpose of the employer’s mandatory vaccination policy is to ensure a safe and healthy workplace.
Important considerations in mandating the vaccine include determining how much notice to give employees before enforcing the policy, developing a list of acceptable documentation for employees to prove their vaccination status, and developing a robust reasonable accommodation policy to address those who need to be exempt from the policy because of their sincerely-held religious beliefs and/or medical status. In addition, employers must be prepared for the turnover that may result if they enforce this type of policy, and the frustration and hostility of employees who believe vaccine mandates infringe on their personal rights.
Alternative #2: Maintain a Non-Mandatory Vaccination Policy with Periodic Testing
Another alternative is to maintain the status quo or institute a Non-Mandatory Vaccination Policy strongly encouraging employee to receive the vaccine, and not require mandatory employee vaccinations, but require the unvaccinated to undergo periodic COVID-19 testing. If this option is chosen, it is imperative that employers and employees work together to implement and follow safety protocols to reduce the transmission of the disease above and beyond mask wearing.
Employers can require unvaccinated employees, who have been shown to be substantially more at risk of spreading COVID-19 and suffering severe medical consequences if they contract the virus, to undergo periodic testing at the employee’s expense. Employers may require testing be done on a weekly or bi-weekly basis. The goal is do testing on a frequent enough basis to prevent potential outbreaks of COVID-19 in the workforce, but not make the expense and time commitment too onerous for workers.
Alternative #3: Offer Incentives
Oftentimes, the “carrot and stick” approach works better than only offering the hammer (mandatory vaccination) approach. Offering incentives to reluctant employees may provide the gentle push needed to encourage compliance.
This hybrid approach, regardless of whether an employer decides to implement a Mandatory or Non-Mandatory Vaccination policy, entices workers to get the vaccine by offering incentives to workers who get vaccinated. The most common incentives, used by employers and government entities include cash, gifts, and gift cards. Employers may also offer paid time off as an incentive.
Employees can provide proof of vaccination by providing the employer with documentation from a pharmacy, public health department, or other health care provider. To stay in legal compliance, employers should not collect any additional medical information aside from proof of vaccination status.
Increasing the numbers of vaccinated workers is essential to health and safety and to ensuring financial viability in the workplace. Regardless of what policy is implemented, employers must provide employees with clear and direct information about the policy and the consequences of non-compliance. Moreover, employers should ensure that medical and religious exemptions are available for those who qualify, and that those workers are not penalized for their unvaccinated status.
Keep in mind that all of the options discussed above should be done in conjunction with the employer’s implementation of basic safety protocols recommended by the CDC, which include indoor mask requirements, enhanced cleaning measures and social distancing.
Schwartz Rollins will continue to monitor the rules and government guidance regarding the COVID-19 pandemic. Our firm has an inventory of sample policies and public accommodations requests that can be tailored to your business, including a Mandatory Vaccination Policy, Non-mandatory Vaccination Policy, Accommodation Procedure for COVID-19 Vaccine, and requests for exemption based on medical or religious reasons. If you need our assistance in crafting a legally complaint policy, we are here to assist you. Please contact one of our attorneys at Schwartz Rollins, or our legal assistant, Vicki Perry at 404.844.4130.