As the COVID-19 vaccine continues to roll out throughout the nation, we’re beginning to see a potential end to this awful pandemic. While we still have a long way to go before COVID-19 is squarely in our rearview mirror, one vaccine-related question that is sent to us often is: Can or should dentists institute a mandatory vaccine policy in their workplaces?
As with so many aspects of employment compliance, it’s not really a question of can employers do this; it’s more about should employers do this, and what are the potential risks involved?
In simple terms, yes, employers can institute a policy that makes vaccinations a condition of employment. There are, however, exceptions to this rule and accommodations that may have to be made, so it’s not so simple in the long run.
Employers with mandatory vaccine policies may be confronted with a backlash from employees for any number of reasons—everything from an employee being an “anti-vaxxer,” to something more serious such as a medical condition that specifically prevents, limits, or restricts someone from receiving the vaccine. In each case, the concern must be carefully considered and managed by the employer. In other words, even with a mandatory vaccine policy in place, an employer still must consider whether or not the employee is entitled to accommodation and therefore an exemption.
Here are two examples:
Religious accommodations: Title VII of the Civil Rights Act of 1964, as well as other state laws, prohibit employers from discriminating against employees and applicants on the basis of religion. An employee may be entitled to a religious accommodation based on a “sincerely held religious belief.”
Medical/disability accommodations: Similarly, under the Americans with Disabilities Act (ADA), as well as other state laws, employers are prohibited from discriminating against employees and applicants on the basis of a medical condition or disability. An employee may be entitled to a disability accommodation based on his or her medical issue. An employer who fires an employee and/or fails to manage this correctly could see liability in the form of a discrimination claim. That’s a big risk!
The process of reviewing an accommodation request is called a “good faith interactive process” and is done on a case-by-case basis. It should also involve documentation throughout, which should be kept safe and confidential in case a lawsuit is filed against the employer. At the end of it all, the employer has either made an accommodation or not, and the employee is either happy or not.
Employers do have the ability to consider someone’s accommodation request as an “undue hardship.” In general, this means the accommodation presents a significant challenge or expense to the business. What constitutes undue hardship is fact-specific and will likely depend on the employer’s industry and the employee’s role in question. For example, a hospital versus a bank, or a nurse versus an administrative staff member.
Again, a determination of undue hardship and denial of an accommodation request can lead to a claim against the employer.
A good alternative to a mandatory vaccine policy is a comprehensive program that involves some of the following:
• Suggest, encourage, and recommend getting the vaccine, especially after you have been vaccinated.
• Offer onsite education pamphlets and other publication materials regarding the value of vaccines.
• Host a vaccine event for employees, or maybe even the greater community.
• Offer rewards or incentives for those who opt in rather than punish those who opt out.
• Create a safe place where people can discuss their concerns about the vaccine, and help them work through it in a supportive, nonjudgmental way, even if it means they still refuse to get vaccinated
Conclusion
We’ve only just scratched the surface of the issues that could come up with a mandatory vaccine policy. What about cost, morale, side effects, administrative time, time off needs, and more? The bottom line is that no program, whether mandatory or not, will ensure that 100% of your employees receive the vaccination. While the choice to mandate any type of vaccine is yours to make, keep in mind the risks and the hoops you’ll have to jump through if you choose to do this.
REBECCA BOARTFIELD is HR compliance consultant and TIM TWIGG is president of Bent Ericksen & Associates. For more than 30 years, the company has been a leading authority in human resources and personnel issues, helping dentists successfully deal with ever-changing and complex labor laws. To receive a complimentary copy of the company’s quarterly newsletter or to learn more, call (800) 679-2760 or visit bentericksen.com.
