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Mandatory Vaccinations – Key Considerations for Employers
Nearly all employers are now faced with an important decision: require employees to be vaccinated or merely encourage them to be vaccinated voluntarily? Here are considerations in making your decision.

You naturally want to help ensure the health and safety of your employees. Mandatory vaccinations can reduce lost work time. Many employees are likely to see mandatory vaccination as a significant benefit.

But there are valid business reasons to encourage employees to be vaccinated while not making it a workplace requirement. First, many employees, for a variety of reasons, are unwilling to be vaccinated. Mandating a COVID-19 vaccine may well alienate some of your workforce, and decreased employee morale and possible retention issues could then become a reality. Second, the administrative burden of managing a mandatory vaccination policy could be considerable.

If you decide on a mandatory vaccination policy at your workplace, please know that the Equal Employment Opportunity Commission (EEOC) will often support your employees if they make either objection: (1) your employee's disability prohibits him or her from taking the vaccine, and (2) taking a vaccine will cause your employee to violate his or her sincerely held religious belief or practice.

An employee’s claim that a disability prevents him or her from receiving the vaccine must be handled with care. Some employees may have a disability that may be aggravated by a vaccine. Presented with such a case, the law entitles you to insist on medical evidence of the claimed condition. Assuming medical verification, you must then see if a reasonable workplace accommodation could remove the problem and allow your employee to continue to perform the essential functions of his or her job. The law does not require you to offer a reasonable accommodation if it would pose an undue hardship on you, nor does the law require you to give the employee the accommodation of his or her choice. The law only requires that you work with the employee to come to the most reasonable accommodation considering all the circumstances

You can consider termination of an employee only after you have worked with the employee to find a reasonable accommodation and no reasonable accommodation will allow your employee to perform the essential functions of his or her job while still keeping your other employees and workplace visitors safe. However, always consider other possible remedies such as your vacation and leave-related employment policies.

The second potential exemption to mandatory vaccination arises when an employee tells you he or she cannot be vaccinated because doing so would violate his or her sincerely held religious beliefs or practices. You do not have to automatically accept an employee’s claimed sincerely held religious belief. If you have an objective basis for questioning either the religious nature or the sincerity of the employee’s objection, you may ask for supporting information about the religious nature of the employee’s objection and the sincerity of the employee’s belief. If the employee cannot provide such information, you may require the employee to be vaccinated.

In such cases, EEOC rules state you should strive to reasonably accommodate the religious belief unless the accommodation would pose an “undue hardship”. That is a factual decision that depends on the particular situation. The definition of an “undue hardship” differs depending on the particular law. Under EEOC rules, you must have good evidence to support your claim for undue hardship, while under other applicable laws an undue hardship may only mean “more than a de minimis cost or burden on the employer”—meaning that even relatively small costs and burdens will qualify as an undue hardship for the employer.

However, under either standard it should seem clear that allowing an unvaccinated employee to enter a workplace in the middle of a global pandemic is sufficient reason for an employer to come out on the winning side in disputes with employees over a mandatory workplace vaccination policy. You should always explore other viable accommodations short of termination, such as teleworking, enhanced social distancing, changing job location.

I hope this short summary helps you better understand better the current employer landscape regarding COVID vaccinations.
–Robert A. Youngberg

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