Author, Sam Brown, Vice President of the Human Services Group, Rancho Mesa Insurance Services, Inc.

As COVID-19 vaccinations become more available and the positive results of our efforts are realized, employers may ask how this impacts the workforce and a full-scale return to the workplace. More specifically, they may ask if an employer can mandate a COVID-19 vaccination policy.

The laws are complex, so please do not rely on this article as legal advice. Please consult your labor law attorney before deciding how to proceed.

The short answer is yes, employers can mandate a COVID-19 vaccination for employees, when it makes sense. 

The 1905 court case Jacobson v. Massachusetts forms the U.S. Equal Employment Opportunity Commission’s (EEOC) basis for guidance. Following a deadly smallpox outbreak in New England in 1901, the Supreme Court ruled that the government may impose “reasonable regulations” to protect the “safety of the general public.” The EEOC makes clear that employers may implement similar demands.

According to the EEOC, an employer can implement a mandatory vaccination policy if there is a job-related need for it or if non-vaccination threatens the health of other employees, customers or themselves. The EEOC’s guidelines date back to the 2009 outbreak of H1N1, and was updated in March 2020.

A mandatory COVID-19 vaccination policy would commonly be used in a health care environment or in emergency services where the likelihood of exposure may be higher based on the nature of the work, opposed to the average office environment that is following the Centers for Disease Control COVID-19 guidelines along with implementing a COVID-19 Prevention Plan.

Employers should take caution when deciding whether or not to implement such a policy and whether it makes sense for their industry and organization. According to OSHA’s January 2021 Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace, employers should not distinguish between workers who are vaccinated and those who are not. All employee should follow the same safety precautions regardless of vaccination status. 

Essential workers in sectors like construction and landscaping, community-based organizations and financial services to name few, can operate under the provided guidance without requiring their employees to get the COVID-19 vaccine in order to resume normal business operations.

Some employers are waiting to impose a mandatory vaccination policy, choosing instead to offer employees incentives for getting vaccinated. These incentives may include a vacation day, a few hours of regular pay, or a cash bonus. To avoid discrimination, an employer may offer the incentive to all employees if the company’s work force meets a vaccination goal. Whatever path you decide, make sure to include the policy in your employee handbook or COVID-19 Prevention Plan.

Considering a recent Kaiser Family Foundation survey, 27% of Americans are “vaccine hesitant.” So, the employer will need to decide if a COVID-19 vaccination policy is right for their organization.  Questions regarding mandatory vaccinations will continue to present a challenge to employers.

For specific questions about your company’s vaccine policy, consult our RM365 HRAdvantage™ portal’s live HR experts.