On September 9, 2021, the Biden Administration issued a six-pronged COVID-19 Action Plan that articulates the Administration’s plan to lead the country out of the ongoing pandemic. The Plan sets the stage for vaccinating more unvaccinated employees. While many of the Plan’s details will be seen in coming weeks, the Plan unquestionably puts vaccine policies front and center for many employers. This newly updated version of our Vaccine Policy Playbook unpacks the implications of the COVID-19 Action Plan as it relates to vaccine policies.
Getting Started With Your Vaccine Policy
As efforts to increase the numbers of those fully-vaccinated continue—and as employers seek to bring more people safely back to the workplace—employer-driven vaccine policies are making headlines. Even so, “vaccine policy” means different things to different employers. For instance, a policy may look very different for those employers in industries where remote work is possible, versus those that require interaction with the public.
Our Vaccine Policy Playbook is an essential resource in designing, communicating, and deploying your company’s vaccine policy, no matter what industry you’re in. The Playbook guides employers through types of mandates, policy creation and considerations, such as reporting, incentives, and local mandates, and perhaps most importantly, defining an accommodation strategy that reduces the risk of ADA and Title VII claims.
Read on for highlights from the Playbook, or request a copy now.
A critical first step in designing your vaccine policy is deciding what type of mandate, if any, to implement. More and more, employer vaccine policies fall into one of the three categories outlined below.
Complete and Total Mandate. Everyone across all job categories must be vaccinated, subject to the duty to accommodate and local regulations.
Complete But Partial Mandate. Only individuals in certain job categories are required to be vaccinated. This is the most complex to implement of all three mandate types and our playbook includes helpful examples.
Conditional. Vaccination is a condition of working in the office or conducting in-person meetings, but working in the office and in-person meetings are not regularly required. This is sometimes referred to as a “soft” mandate.
Choosing a policy type is a critical first step that will affect the content and tone of related communications, potential accommodation issues, how quickly the mandate can be implemented, and whether it can be implemented uniformly across all company locations. Each mandate type raises issues of accommodation, disparate impact claims, and local regulations that the employer must take into account.
Designing a Mandatory Vaccine Policy
Employers instituting a vaccine mandate of any type need a policy explaining the requirements and consequences of non-compliance. Complete and Total or Partial Mandate policies must address legally required accommodations for disability and religion. Under a Conditional policy, accommodation should generally be a non-issue since those who are unvaccinated can work remotely. For those choosing the Complete and Total or Partial Mandate, the following five features make up a best-practice policy:
Statement of policy
Contact person for accommodations
Consequences of non-compliance
Timeline for implementation
It is important that employers anticipate employee questions regarding why the policy is being implemented, whether testing is allowed as an alternative to vaccination, and whether payments for testing or time spent getting the vaccine will be provided. Addressing these questions up front in the policy is optional.
As you design your policy, our Playbook provides a helpful example of a “Complete and Total” Vaccine Policy for reference.
As with any HR policy, vaccination mandates come with a host of considerations for reporting, payments, incentives, and emerging local and state legislation.
Vaccination Status Reporting. When deciding what type of policy to implement, and to ensure ongoing compliance with the policy, employers may elect to require that employees report their vaccine status to HR. This comes with important ADA, EEOC, and HIPAA considerations. Our playbook guides you through them.
Paying for Time Associated With COVID-19 Vaccination and Testing. Many states and local jurisdictions already require paid time off during the employees’ working day to receive a COVID-19 vaccine and for time missed due to side effects. If you are not in one of those jurisdictions, do you still have to pay employees for time spent receiving a mandatory COVID-19 vaccine? Our playbook has the answer.
Local and State Government Mandates. State legislatures have been active during the pandemic in proposing bills hostile to vaccine mandates for most types of private employers. This underscores that employers requiring vaccination must anticipate some vehement opposition. Our playbook walks you through some key local and state mandates.
Perhaps most critical to a Mandatory Vaccine Policy is the accommodation of those with a qualifying disability or sincere religious reasons for not getting the vaccine.
ADA Accommodations. Employees or applicants who cannot get the COVID-19 vaccine because of qualifying disability may be entitled to reasonable accommodation under the ADA. Our playbook provides an overview of this aspect of a vaccination policy, followed by common questions.
Religious Accommodations. Religious claims of exemption from mandatory vaccination policies must be taken into careful consideration, and employers must consider whether sincerely held religious objections can be accommodated. That said, “religion” is broadly defined, and difficult to question. Our playbook walks you through the EEOC definition and how to diplomatically probe claims of religious exemptions.
Announcing the Policy
A mandatory vaccine policy will be controversial, probably offensive to some employees. Anyone skeptical of either the policy or vaccines generally needs to know this edict comes from the top, and that it is an edict—not an aspiration. Leadership, in turn, must provide outward and vocal support of the organization’s policy decision and its commitment to following through. Accordingly, the policy should be announced by message from the CEO or its equivalent at the given organization explaining the reasons for the mandate, along with a link to the full policy.
To assist in developing your communication plan, our playbook concludes with 20 Frequently Asked Questions for HR and employees on topics ranging from the impact of not being vaccinated to why social distancing and masking is not enough.
Please note, the Vaccine Policy Playbook has been prepared by Seyfarth Shaw LLP for informational purposes only. The material shared in this playbook should not be construed as legal advice or a legal opinion on any specific facts or circumstances, nor does it create an attorney-client relationship. The content is intended for general informational purposes only. Please consult a lawyer concerning your own situation and any specific legal questions you may have.