Is Your Organization Considering Mandating the COVID Vaccine for Employees? What You Need to Know.
Earlier this month, The Department of Veterans Affairs announced it will soon mandate that all health care providers and personnel be fully vaccinated against COVID-19. Similarly, on August 19, Governor Kate Brown declared that all Oregon health care workers and teachers will need to be fully vaccinated by October 18 or six weeks after full FDA approval, whichever is later. Governor Inslee has made a comparable announcement regarding Washington’s state employees and health care workers. Finally, this week, The Federal Food and Drug Administration (FDA) formally approved the Pfizer-BioNTech COVID vaccination.
With these pronouncements and a fully approved COVID-19 vaccination available for individuals 16 years of age and older, it is expected that more employers may begin adopting vaccination mandates to quell the spread of the infection.
The question for employers, however, is whether employer vaccination mandates are legal. The answer is, probably. Per a statement on May 28, 2021, by the Equal Employment Opportunity Commission (EEOC), federal law does not preclude an employer from requiring all employees physically entering the workplace to be vaccinated for COVID-19 subject to reasonable accommodations for persons who, because of disability or sincerely held religious beliefs, cannot be vaccinated. The Bureau of Labor and Industries (BOLI), the Oregon state agency charged with investigating claims of unlawful discrimination, has adopted a similar position.
Early Court challenges so far have been affirming. One Texas judge noted that at-will employees are subject to all kinds of prohibitions on behavior in exchange for employment and mandatory vaccination was no different. He dismissed plaintiff’s charge that a mandatory vaccination was coercive noting that plaintiffs could freely accept, or refuse and find work elsewhere. Bridges v. Houston Methodist Hosp., 2021 U.S. Dist. LEXIS 110382 (2021). Of course, legal challenges persist so employers considering a vaccine mandate must be cognizant of the legal risks, including the risk for potential legal challenge.
Employers should consider several other factors. First, if an employer is considering a vaccination mandate, it will need to develop a clearly written policy which details all key information for employees. Any such policy should be comprehensive and be readily available to staff who will undoubtedly have questions. Second, any policy must consider the need to provide reasonable accommodation for any employee unable to get vaccinated due to an ADA covered disability or because of sincerely held religious beliefs or practices. Finally, if an employer has a unionized labor force, it should consider any provision in the collective bargaining agreement that might preclude a vaccination mandate and whether the mandate would trigger a collective bargaining obligation.
Short of mandating vaccination, employers have many tools available to them to encourage vaccination. Employers might consider:
Initiating an education campaign to educate employees on the efficacy and safety of the vaccines. Consider emailing fact sheets, frequently asked questions, etc. to help dispel vaccination myths circulating on social media;
Providing information about how and where to be vaccinated. Consider emailing employees local vaccination clinic locations with phone numbers, addresses, and vaccination times;
Developing supportive vaccination policies. Consider offering on-site vaccination clinics. Allow employees time during the regular workday to get vaccinated. Allow paid time off to go get vaccinated. Offer flexible staffing accommodations to allow for and encourage vaccination;
Developing a social model for vaccination. Consider internal or social media messaging showing trusted leaders in the organization promoting vaccination;
Vaccination bonuses to employees who voluntarily obtain their COVID vaccination such as an additional PTO day. (When crafting any bonus policy, consider how to not exclude those unable to be vaccinated because of religion or disability and be cognizant of any equal pay requirements); and
Consider companywide rewards if the total employee vaccination rate surpasses a specific pre-determined threshold.
If you would like assistance updating your COVID-19 policy or have questions, do not hesitate to email me at or call me at 503-595-2127.