Maybe it’s the Delta variant. Or maybe the publicity regarding Walmart and Disney. But over the last two weeks or so, there’s been a renewed interest in whether employers can mandate vaccines in Connecticut.
Indeed, we have been fielding lots of questions from employers (and friends and family) about mandatory vaccination policies. But many of the conversations are similar. Can we? Should we?
Yesterday, I spoke with Dennis House and News8 about this issue but read on for more on the topic.
So, here are some of the FAQs and some more of my thoughts that didn’t make the interview:
- I’m an private employer in Connecticut. Can I mandate the vaccine to my employees?
- That’s it? No caveats?
- Well, of course there are exceptions. But generally, employers are free to mandate that their employees be vaccinated.
- What kind of exceptions are we talking about?
- The kind you’ve already been dealing with throughout this pandemic. The law provides that you must provide a reasonable accommodation for religious beliefs, disabilities, or pregnancy. But even for this exception, there’s a larger exception in play.
- I’m confused. Does that mean that if they get a note from their doctor or rabbi, they’re exempt?
- No. It just means that you ought to consider whether they have a disability or a religious belief that qualifies for an accommodation and then see whether there is actually a reasonable accommodation you can provide, on a case-by-case basis. But remember, there’s no doubt that unvaccinated workers can be a direct threat to themselves or others and employers don’t need to provide an accommodation that is an undue burden on the employer. Thus, in many instances, an unvaccinated worker may still be barred from the workplace or the accommodation may not be “reasonable”. If an assembly-line worker asks to work without a mask while unvaccinated next to others, you can probably say no — even if they have a note from a doctor. As with other types of accommodations, you should engage in the interactive process.
- What types of religious beliefs qualify?
- That’s an open question. Existing EEOC guidance has noted that typically employers should not be in the business of challenging an employee’s sincerely held religious beliefs. But political beliefs or conspiracy theories aren’t enough and most of the major religions do not have any prohibitions on vaccinations that are part of their faith. Indeed, many faith leaders have been encouraging people to get vaccinated. An employer is entitled to push back a bit but such skepticism should be based on facts, not speculation.
- How do I go about mandating vaccines?
- One place to start, if you haven’t done so, is with a survey of employees to determine who is and who isn’t vaccinated. Are you at 95% or 65% compliance? That may help inform how and when a mandate should be done. After that, develop a policy and run it by your lawyers. Then announce it and give employees sufficient time to get fully vaccinated. Be sure to manage the requests for exemptions.
- If I decide not to mandate the vaccine, what do I do with complaints from vaccinated workers?
- Good question and another one without a clear answer. Employers have an obligation to provide a safe workplace. Is having unvaccinated workers in your midst a safety hazard? No doubt an attorney will seek to file suit on this as one of my Twitter feeds suggests.
Mandates don’t solve all the problems an employer has in dealing with the pandemic but it solves several including dealing with quarantines, contact tracing, symptom tracking, travel restrictions, PTO and more. Employers should be mindful though that mandates may lead to other obligations such as providing employees with paid time off to receive the vaccine and deal with its side effects too.
It may not be for every employer but it’s a good solution for some. Time to think about it.