By Trish Ennis CSP, ARM, CRIS
Executive Director, Colorado Safety Association
The COVID-19 Pandemic has been a long and challenging experience for people across the globe. The good news is that there are vaccines being deployed in the United States under the FDA’s Emergency Use Authorization (EUA). The challenge facing employers now is the question of whether to make a vaccine policy mandatory. Can employers require a worker to show proof of vaccination before they are allowed to return to work?
The Equal Employment Opportunity Commission (EEOC) is the best source for employers interested in guidance on the question of vaccines in the workplace. The current position of the EEOC is that employers may require workers to obtain a vaccine before they can return to work. There are some limitations that employers must consider however, in order to avoid violating a variety of antidiscrimination laws, including the Americans with Disabilities Act (ADA). The following link provides a significant amount of information on this topic. Vaccines are addressed under section K.
Things to consider when deciding how to manage the question of vaccines and return to work include reasonable accommodations for employees with disabilities, and reasonable accommodations for employees unable to receive a vaccine for religious reasons. Additionally, to develop reasonable policies employers should ensure that the need for a vaccine is job-related, and is consistent with business necessity. Determining business necessity includes asking the following question: “will an employee who does not receive a vaccination, pose a direct threat to the health or safety of her or himself or others?” Employers should conduct a workplace risk assessment that includes the following factors in determining whether a direct threat exists: the duration of the risk; the nature and severity of the potential harm; the likelihood that the potential harm will occur; and the imminence of the potential harm. (source: EEOC, ADA and Title VII Issues Regarding Mandatory Vaccinations K.5).
Finally, developing a vaccine policy is a good practice. The policy should state the purpose, scope and policy language. Many organizations are developing policies for both mandatory and non-mandatory vaccine guidelines. Fisher Phillips, LLC has compiled an excellent website dedicated to COVID-19, workplace employment, and safety issues associated with the topic. The vaccine resources they provide include good examples of policy documents, and includes a 50-state chart on vaccines, exemptions, and related state issues. The website can be found here: https://www.fisherphillips.com/vaccine-resource-center#DataBank
The Society for Human Resource Managers (SHRM) also has a variety of resources and tools available. Some of the information may require a membership for access.
The bottom line is that the approach to developing vaccine guidelines should be well thought out, consistent with business necessity, and supported by a risk analysis.