10 Tips for Mandatory Covid-19 Vaccination Policies

The Biden administration recently announced that it will be mandating Covid-19 vaccine policies for federal contractors and federal employees, as well as for employers with over 100 employees. This announcement, along with surging Delta variant cases and a desire to safely continue or resume in-person work, has many employers evaluating mandatory Covid-19 vaccine policies. Indeed, a recent national employer survey estimates that by October 2021, 52% of US employers could have some type of Covid-19 vaccine requirement in the workplace. The guidelines below offer important factors to consider when drafting a mandatory vaccination policy.

1. Confirm Compliance with State Laws

Before drafting a mandatory vaccination policy, employers operating outside of California should confirm that state laws do not prohibit them from doing so. Certain states, such as Montana, have passed laws prohibiting private employers from requiring employee vaccination. California employers can implement mandatory vaccine policies, as long as they provide a process for considering religious and disability accommodations. Guidance from both the Equal Employment Opportunity Commission and California Department of Fair Employment and Housing clarifies that employers can implement such policies, and recent court cases have confirmed an employer’s legal right to do so.

2. Provide the Safety Rationale

As a starting point, employers should briefly explain the safety rationale behind the policy, including that Covid-19 presents a direct threat to the workplace. For example, the policy might reference an employer’s statutory duty to maintain a workplace that is free of known hazards, and then state that there are risks posed by employees who have not been fully vaccinated against Covid-19. Employers should consider grounding any statements about Covid-19 risk on objective guidance published by health policy experts, such as the Centers for Disease Control and Prevention (CDC). Providing a safety rationale is a necessary component of a mandatory vaccination policy, and including one may also help bring hesitant employees on board.

3. Identify Which Employees Fall Under the Policy

Employers should clearly identify which employees need to get vaccinated – whether the policy applies to all employees or only a certain subset of employees. The key consideration is the amount of risk an unvaccinated employee poses when performing their job duties. Employers might assess where the employee works, the amount of time the employee spends interacting with others, and the possibility for social distancing. An employer may face challenges in issuing a mandatory vaccine policy for remote employees if there is no intention of returning them to a physical workplace. If an employer does plan on returning employees to a physical workplace, the employer might signal their intent by planning and broadly communicating about future in-person meetings or activities.

4. Share Where/How Employees Can Get Vaccinated

Some employees may not know where to get a vaccine or they may be concerned about financial costs. To remove these potential barriers, we recommend sharing information about cost and accessibility. Employers can state that Covid-19 vaccines are free, whether the individual has health insurance or not. Additionally, employers can inform employees that they can get a vaccine through community clinics or through their doctor. If the employer will provide vaccinations, the policy should state the applicable dates and locations.

5. Clearly Communicate Vaccine Deadlines

Employers should clearly identify the vaccination deadline. When selecting the deadline, employers should be mindful of potential business impacts. There may be downstream implications to the workforce as a consequence of vaccine appointments, recovery time following vaccination, or attrition. Therefore, an employer may consider setting vaccination deadlines outside of major business deadlines or busy seasons.

Additionally, the employer should consider vaccine availability and the amount of time it will take an unvaccinated individual to become “fully vaccinated.” Per CDC guidelines, individuals are not “fully vaccinated” until two weeks after their last dose. Since the two-dose vaccination series (Moderna and Pfizer) recommend waiting three or four weeks between doses, it may take employees six weeks or more to become “fully vaccinated.”

Employers may also set the expectation that employees will receive future CDC recommended and approved Covid-19 boosters. Vaccine availability may have a bigger impact on these deadlines, as such boosters may not be widely available.

6. Consider Compensating Employees for Time Spent on Vaccination

Right now, California employers must provide additional paid sick leave for employees who are unable to work or telework due to a Covid-19 vaccine appointment. This law expires on September 30, and it is unclear whether we will see additional state legislation in this area. In addition, the federal government may require employers to provide sick leave to take the vaccine and recover from any side effects. To ensure the policy is compliant with future potential legislation, an employer should consider stating that they will grant employees additional sick leave to obtain the vaccine.

7. Identify How Employees Will Submit Proof of Vaccination

Employers should clearly communicate how employees will be required to demonstrate proof of their vaccination. Employers are not required to use any particular method, but acceptable methods include:

• Employees provide proof of vaccination (e.g., a vaccine card, image of vaccine card, health care document showing vaccination status, or state-based vaccine record), and the employer maintains a copy.
• Employees provide proof of vaccination, but the employer maintains only a list of vaccinated employees and does not keep any copy of their vaccination documentation.
• Employees self-attest to their vaccination status and the employer maintains a record of who self-attests.

8. Keep Vaccination Records Confidential

Documentation or confirmation of an employee’s Covid-19 vaccination status is confidential medical information. This may include copies of employee vaccination records, lists of vaccinated employees, employee disclosures about their medical conditions that may increase the risk of Covid-19 complications, religious accommodation letters stating an employee’s non-vaccination status, and any employee medical information obtained during the course of an employer vaccination program. This documentation should be maintained in a confidential file, stored separately from the employee’s personnel files, and should only be shared with employees that have legitimate business, health, and/or safety reasons to access it.

9. Develop Plans for Religious and Medical Accommodations

Under state and federal law, employers must reasonably accommodate employees’ known disabilities and/or sincerely held religious beliefs. (Note that California has stricter religious exemption guidelines than federal law.) Therefore, employers should develop a process for any employee who requests an accommodation to the vaccination requirement for legitimate disability-related or religious reasons. Within the vaccination policy itself, employers should identify a designated individual whom employees can notify about an accommodation/exemption and how to request one. Employers may also consider assuring employees that they will not be subject to discrimination or retaliation for exercising their rights.

10. Respect Employees’ Collective Action Rights

Exercise caution when responding to employee concerns or requests for accommodation. Employees who discuss these concerns with each other may qualify as engaging in concerted activity, which is protected under federal law. Efforts to discourage employees from discussing these matters or acting in concert could give rise to claims of retaliation.

The Farella Braun + Martel employment group is available to assist employers in developing and implementing Covid-19 and related policies. For more information, please contact Holly Sutton (415.954.4476 / [email protected]) or Hillary Marks (415.954.4947 / [email protected]).