By Julio R. Olaya Jr.
COVID-19 cases are trending in a positive direction. Cases are down, and all adults may now receive a COVID-19 vaccine. While legislative efforts have been made to curtail an employer’s ability to mandate the COVID-19 vaccination onto their employees, as of today, those efforts have been unsuccessful. The question that seems to be on every employer’s mind is not whether they can mandate these vaccines, but whether they should.
Pharmacies, clinics, and hospitals are now providing these vaccines to all who seek it. Now that the supply of the vaccine is plentiful and there are no restrictions, should I mandate my employees to receive a vaccine as part of their terms of employment?
The answer seems straightforward; it is anything but. Mandating vaccines, while legal, requires a plan with a purpose. That is, employers should, initially, provide information about the benefits of vaccinations to their employees. Employers should welcome questions and direct any inquiries to the many informational resources available. Click here for the CDC's COVID-19 website. This should be done with the aim of encouraging all employees to voluntarily receive their vaccination.
Rather than mandating vaccines quickly, and potentially facing the hesitation and backlash of a workforce of unvaccinated employees, you might choose a more measured approach. If given some time, many employees may decide to get vaccinated themselves without intervention of an employer. In the future, there is a possibility masking guidance will be relaxed for vaccinated individuals, this possibility may encourage employees to be already vaccinated for when that occurs.
As we have previously covered, employers may combine these encouragements with incentives designed to coax their more hesitant employees into receiving the vaccine. This may be in the form of cash, paid time off, or something else of value. There are potential compliance issues to watch out for with incentives in the form of ERISA-covered wellness programs that have a health-contingent element, which could include getting the vaccine. If that is the case, any incentive must be reasonable lest it could be considered coercive. Employers should also consider providing alternative means for employees to get the incentive if the employee cannot get the vaccine due to medical reason or a sincerely held religious belief.
The difficult truth, however, is that no amount or combination of education, encouragement, or incentives is bound to convince an entire workforce to vaccinate themselves. These unvaccinated holdouts may have been in the majority before; however, they are likely to be in the minority over time. If an employer has allowed time to get its workforce vaccinated and continues to have employees who refuse to get vaccinated, that is when a discussion of whether to mandate a COVID-19 vaccine becomes appropriate. Every employer’s situation is unique and what is appropriate for one employer, may not be for another. Before making any decisions, please consult an attorney.
Julio R. Olaya Jr., an associate at the firm, focuses his practice on litigation matters related to medical malpractice and labor and employment. He works to defend healthcare providers in medical malpractice litigation. Julio also uses his experience as a student attorney for Boston University School of Law Immigrants’ Rights Program to provide guidance and representation in handling immigration and compliance issues.
Disclaimer: The information included here is provided for general informational purposes only and should not be a substitute for legal advice nor is it intended to be a substitute for legal counsel. For more information or if you have further questions, please contact one of our Attorneys.