What should firms' policies be toward staff vaccinations?

By Brice Wallace 

As the COVID-19 vaccine rollout continues, employers are facing a slew of questions about how to handle issues associated with their workforces.

Should companies require employees to have a vaccination? Should they incentivize workers to get a vaccination? Should they do nothing?

Those questions and more were addressed during a recent webinar featuring Parsons Behle & Latimer’s employment and labor attorneys. They made clear that companies face a litany of laws, exceptions, court rulings, public policies and public opinion considerations when trying to decide the best approach for their situation.

Generally, employers can require employees to get a vaccination but may be better served by making them voluntary or creating incentives to entice them to do so.

Because vaccines are still not widely available, it’s too early to mandate that employees receive them, according to Susan Baird Motschiedler, of counsel in Salt Lake City. However, it’s not too early to communicate to both workers and customers about COVID and the vaccines, while steering clear of political statements and opinions.

“You don’t necessarily have to decide exactly at this moment, but you can start communicating ‘Here’s what we’re thinking about doing and here’s why,’” she said.

Having no policy is unrealistic, she said.

“We have a number of people who don’t want to deal with it, and I don’t think that that’s possible,” Motschiedler said. “Even by having people ask questions, you have to have an answer.”

Whether or not an employer offers employees incentives for vaccinations, companies will want to be able to show “that you have some sort of policy about how you’re going to deal with this. And it’s beneficial if potentially you can say to your workforce and your customers, ‘Hey, 75 percent of our workforce is vaccinated,’ or be able to represent that,” she said.

Companies that want to mandate the vaccinations can do so, based on government guidance that employers have a duty to provide a workplace free from recognized hazards likely to cause death or serious physical harm. However, even mandates must allow for employee exceptions based on religion, disability and pregnancy/nursing.

Companies preferring to make the shots voluntary have plenty of options for incentives, including money, paid time off or paid time off sometime in the future.

And rather than mandate vaccinations or make them voluntary, companies also can opt to “encourage and track” vaccinations, go through the steps to become a vaccination provider and administer the shots themselves, or have a third party administer the vaccinations.

“What I want you all to take away from this is, you should look at vaccinations as part of your overall strategy,” said Amy Lombardo, a shareholder in the Boise office. “So take a look at what your business continuity plan already says, what the status is of your employees now, and how are you going to use vaccinations to further reach the goals of your office or your workplace.”

The federal government expects companies to perform a risk assessment of their workplace. Several factors should be considered to determine the degree of risk.

“It’s not necessarily that just one case of COVID is going to be a serious problem. Many businesses have had those already. It’s more of, you have to do the work to look at exactly what’s going on to determine what your next steps should be,” Lombardo said.

“Keep in mind that all of your strategy is going to be subject to what your local health department is doing and how your state decides to distribute the vaccines. As the COVID-19 vaccine rollout continues, employers are facing a slew of questions about how to handle issues associated with their workforces.

Should companies require employees to have a vaccination? Should they incentivize workers to get a vaccination? Should they do nothing?

Those questions and more were addressed during a recent webinar featuring Parsons Behle & Latimer’s employment and labor attorneys. They made clear that companies face a litany of laws, exceptions, court rulings, public policies and public opinion considerations when trying to decide the best approach for their situation.

Generally, employers can require employees to get a vaccination but may be better served by making them voluntary or creating incentives to entice them to do so.

Because vaccines are still not widely available, it’s too early to mandate that employees receive them, according to Susan Baird Motschiedler, of counsel in Salt Lake City. However, it’s not too early to communicate to both workers and customers about COVID and the vaccines, while steering clear of political statements and opinions.

“You don’t necessarily have to decide exactly at this moment, but you can start communicating ‘Here’s what we’re thinking about doing and here’s why,’” she said.

Having no policy is unrealistic, she said.

“We have a number of people who don’t want to deal with it, and I don’t think that that’s possible,” Motschiedler said. “Even by having people ask questions, you have to have an answer.”

Whether or not an employer offers employees incentives for vaccinations, companies will want to be able to show “that you have some sort of policy about how you’re going to deal with this. And it’s beneficial if potentially you can say to your workforce and your customers, ‘Hey, 75 percent of our workforce is vaccinated,’ or be able to represent that,” she said.

Companies that want to mandate the vaccinations can do so, based on government guidance that employers have a duty to provide a workplace free from recognized hazards likely to cause death or serious physical harm. However, even mandates must allow for employee exceptions based on religion, disability and pregnancy/nursing.

Companies preferring to make the shots voluntary have plenty of options for incentives, including money, paid time off or paid time off sometime in the future.

And rather than mandate vaccinations or make them voluntary, companies also can opt to “encourage and track” vaccinations, go through the steps to become a vaccination provider and administer the shots themselves, or have a third party administer the vaccinations.

“What I want you all to take away from this is, you should look at vaccinations as part of your overall strategy,” said Amy Lombardo, a shareholder in the Boise office. “So take a look at what your business continuity plan already says, what the status is of your employees now, and how are you going to use vaccinations to further reach the goals of your office or your workplace.”

The federal government expects companies to perform a risk assessment of their workplace. Several factors should be considered to determine the degree of risk.

“It’s not necessarily that just one case of COVID is going to be a serious problem. Many businesses have had those already. It’s more of, you have to do the work to look at exactly what’s going on to determine what your next steps should be,” Lombardo said.

“Keep in mind that all of your strategy is going to be subject to what your local health department is doing and how your state decides to distribute the vaccines. I don’t think this means that it’s too early to think about these issues and decide what we’re going to do, but be aware that some states are further ahead than others and that you need to know how you’re going to interact with the priorities that are set and know that your people may not be able to get a vaccine yet.”

Liz M. Mellem, office managing shareholder in Missoula, urged companies to thoroughly document their COVID-related activities and ensure that procedures are being implemented correctly. Both she and Lombardo also stressed that vaccinations are only one layer of protection against COVID and will not replace social distancing, masks and hygiene layers.

“We have evidence that the vaccinations are very effective, but not yet that they prevent person-to-person transmission,” Lombardo said. “So you may be protecting people in your office but not stopping the spread, which is somewhat of a difficult distinction to understand.”

Laurence B. Irwin, of counsel in Reno, said companies should get up to speed on their local statutes and proposals related to the coronavirus, in part as a way to avoid litigation.

“If you follow the controlling health standards and you’re not doing anything exceptionally, grossly negligent or somebody’s doing something of an intentional nature,” he said, “you will be protected for the most part and immune from a lawsuit for transmission in the workplace.”

A recording of the webinar is available at https://www.parsonsbehle.com/multimedia/covid-19-vaccinations-in-the-workplace-mandatory-voluntary-or-none-at-all-video.