Should Employers Require COVID-19 Vaccination Before Returning to the Office?

Coronavirus Vaccine Question Mark

As COVID-19 vaccine rollouts intensify across the country, employers across all industries are trying to decide whether they should implement a mandatory vaccine policy before they let employees back into the office. This is especially true for biotechnology companies, as these companies could set a precedent for organizations across all industries.

In a webinar presented earlier this month titled “What Biotech Employers Need to Know about COVID Vaccines and Returning to the Office,” Hogan Lovells partners Melissa Bianchi, David Horowitz and George Ingham discussed 10 considerations about mandatory COVID-19 vaccine policies.

The speakers suggest employers will likely be able to implement these policies, per current Equal Employment Opportunity Commission (EEOC) guidance, but employers need to make careful decisions on whether or not they should do so.

Factors that may likely affect the decision include vaccine availability, the potential of providing accommodations to employees who object the policy, as well as issues concerning state and local laws.

Additionally, employers who decide to make vaccination programs mandatory before an employee can enter the office must have the capability to process exemption requests based on pregnancy, disability and/or religious beliefs. These requests may need to undergo rigorous analyses, considering the broad definitions of disability and the legal framework involved in pregnancy accommodations, to identify whether reasonable accommodations are possible.

Employers have the right to ask employees vaccine-related questions, but these questions should be made clear and should avoid queries about protected class as well as genetic information. The speakers suggest asking an employee why they did not get vaccinated could be risky, but the employer could ask the employee whether or not they received the vaccine. These questions, and their corresponding answers, should be confidential but documented by the company in files separate from normal personnel files.

The speakers emphasize that employers should aggregate and anonymize the vaccine answers so the management team cannot find out which employee has or has not been vaccinated against COVID-19.

Employers that have voluntary vaccination programs may be able to set up clinics onsite, allowing either the employer or a third-party service to provide the vaccines. In contrast, employers that implement mandatory programs can only set up these onsite clinics with respect to employees that the employer has “a reasonable belief, based on objective evidence, that [the] employee who does not answer the questions and, therefore, does not receive a vaccination, will pose a direct threat to the health or safety of her or himself or others.”

In addition, the speakers suggest that an employer can require non-employees of the company, like independent contractors and visitors, to receive the vaccine before they come into the office. This is because non-employees are typically not covered by applicable protections that generally cover full-time employees. State and local laws should be considered in this regard.

That being said, the speakers note that employers should not look to make major changes to normal business operations based on the vaccination rates in the workplace. In new guidance, the federal Occupational Safety and Health Administration says employers should “not distinguish between workers who are vaccinated and those who are not” in regard to measures taken for safety.

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