By Peter S. Hicks, Sharholder, and Elizabeth A. Rosso, Shareholder
There have been numerous alerts, articles, and blog posts from various sources providing updates to employers on COVID-19 vaccines and how—or even whether—employers may implement a vaccination policy for the workplace. On March 8, 2021, the Centers for Disease Control and Prevention (“CDC”) issued its Interim Public Health Recommendations for Fully Vaccinated People, making this the perfect time to consolidate the disparate guidance into one place so that employers can begin to develop vaccine policies and slowly start returning to less restricted workplaces.
The CDC’s guidance is designed to help people find the balance between returning fully to freely interacting with friends and family, and remembering that even vaccinated individuals can be carriers of COVID-19 and therefore still pose a risk to others. The CDC guidance provides that fully vaccinated people may:
- Visit with other fully vaccinated people indoors without wearing masks or physical distancing
- Visit with unvaccinated people from a single household who are at low risk for severe COVID-19 disease indoors without wearing masks or physical distancing
- Refrain from quarantine and testing following a known exposure if asymptomatic
Like individuals, employers should be cautious when reopening their workplaces as vaccines are more widely administered. The duty to provide reasonable accommodations to individuals who are more susceptible to COVID-19 has not changed. In addition, having a blanket vaccination policy is a prudent way to restore the workforce to full productivity while still protecting individual employees.
Vaccination Policy Q&A
(1) May an employer require employees to be vaccinated?
Generally, yes, an employer can mandate that employees be vaccinated, with several exceptions. First, employers may be required to provide reasonable accommodation to employees who cannot receive a COVID vaccine due to a disability, or object to being vaccinated on the basis of sincerely held religious beliefs. Remember, however, that an employer may not need to provide reasonable accommodation if doing so would cause undue hardship on the business or a direct threat to the safety of the employee or others.
Second, Oregon law exempts some types of workers from a vaccine requirement, specifically: people licensed or certified to provide healthcare; employees of a healthcare facility, a licensed healthcare provider, or a clinical laboratory; firefighters; law enforcement officers; corrections officers; and parole and probation officers.
Third, for employers with a unionized work force, a collective bargaining agreement could prohibit mandatory vaccinations. Individual employment contracts could also contain a similar prohibition.
(2) What should an employer’s vaccination policy look like?
There is no one-size-fits-all vaccination policy. Individual policies will run the gamut from requiring all employees to be vaccinated, to making vaccination fully optional for all employees, to offering incentives for vaccinated employees, and everything in between. Factors to consider when developing a vaccination policy include the nature of the work force, working conditions, and overall work environment (for example, whether the work is done outdoors or in a large open warehouse or in an office setting).
(3) If an employer mandates vaccination, must it pay employees to be vaccinated?
Maybe. Wage and hour laws require pay for the time an employee spends waiting for or receiving medical attention at the direction of the employer during normal working hours on days when the employee normally works. If an employee chooses to get a required vaccine off hours and off premises, that time need not be paid. If an employee chooses to get a required vaccine during normal working hours off premises, then the employee can use any available sick leave.
(4) May an employer offer financial incentives to get vaccinated?
Possibly, provided you keep a number of factors in mind. Does the incentive constitute a wellness program? Have pay equity issues been taken into account for those employees who choose not to be vaccinated? Do privacy issues come into play if you require proof of vaccination?
(5) Is a vaccination policy alone enough to protect employees and customers?
No. Although vaccination is becoming more widespread, as noted above there are individuals who may not be able, or who may not be required, to be vaccinated. Employers and businesses can continue to require recommended COVID-19 protective measures such as masking, distancing, and remote work to keep employees and customers safe.
Regardless of whether an employer mandates vaccination for its employees, it should provide employees with as much notice of its decision as possible, and should ensure that employees understand the process for communicating with the employer about any concerns or potential exemptions that might apply.
Developing a COVID-19 vaccination policy is a best practice for all employers. Each policy will be different depending on the nature and circumstances of any given workplace. Jordan Ramis can help navigate the considerations outlined above and draft a practical, legally sound vaccination policy for your workplace. Please contact us for assistance.
Peter Hicks is an employment and commercial litigation attorney and shareholder at Jordan Ramis PC. He can be reached at (541) 797-2079 or firstname.lastname@example.org.
Elizabeth A. Rosso is an attorney and shareholder at Jordan Ramis PC. She is experienced in helping clients weather and plan for various crises, including COVID-19. Contact her at email@example.com or (503) 598-7070.