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Workplace Vaccination Requirements: 3 Questions Employers Should Consider

by Ben Spradling | Mar 11, 2021 9:49:07 AM


For small business owners, it’s likely time to have a vaccination conversation. A growing number of individuals now have the opportunity to connect with a COVID-19 vaccine, and that’s raising some questions about what that means for workplaces.

Can you make your employees get a COVID-19 vaccine? How do local laws affect what you can or can’t do? And even if you can enforce a vaccine requirement, should you? Are there alternatives?

Those are tough questions that deserve thoughtful answers. Amy Robinson and Iván Resendiz Gutierrez of Miller Nash Graham and Dunn LLP joined Better Business Bureau’s webinar series to explain what employers really need to know about COVID-19 vaccination requirements.

Can you require employees be vaccinated?

Right now, that answer depends on where you’re located. A few states, like Montana, for example, have barred employers from mandating COVID-19 vaccines. In nearly every other state, though, employers do have the right to enforce that requirement in their workplaces.

How employers do that, though, is critical, according to some recent guidance issued by the Equal Employment Opportunity Commission. As Robinson explains, any vaccine-related requirement needs to prioritize clarity so that it allows for consistency.

“It needs to be non-discriminatory. It needs to comply with a number of other protections at play. We, of course, recommend, as with many things in the employment arena, a clear written policy or program so that there's consistency with it.”

How do state or local laws impact what you can or can’t require?

Some states have heightened protections in place that make instituting a vaccine requirement a little trickier. Those protections may mean you could require the majority of your staff to get the vaccine, but there could be exceptions that may exclude some workers.

For example, Oregon, as Gutierrez explained in the webinar, has a law that says certain workers may not be subject to a vaccine mandate as a condition of employment. So, businesses that employ a worker that meets that criteria needs to be careful of what they mandate and how they do it.

“You could have the scenario where, you know, 90% of your workforce can be forced to get the vaccine with exceptions, but there's 10% that are maybe exempt from this requirement altogether,” says Gutierrez.

Are there alternatives?

If you want your team to get the vaccine, but you don’t necessarily want to go through the necessary steps to enforce a mandate, there are some options. Of those, the most effective alternative may be encouragement.

Robinson and Gutierrez recommend supplying your staff with accurate, reputable information that can inform them about the vaccine. Don’t just use one source either. For example, offer materials created from both the CDC and your local health department so workers know multiple organizations are providing the same guidance.

Employers can also offer paid time off to employees wanting to get the vaccine or needing to recover from any side effects. Additionally, as the business owner, you can also lead by example. Get the vaccine yourself and share experience to show you support.

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