With the number of vaccinated Americans growing, small business owners are considering how to bring their employees and customers back into the workplace. To facilitate your reopening, you may be considering imposing vaccination mandates for your employees. As you weigh any decisions regarding vaccine requirements for your employees, you’re likely considering the legal implications of any such policy.

While a mandatory vaccination policy may make sense for some employers, the issues associated with such a policy are complex and require careful consideration. As an employer, does it make sense for you to implement a mandatory vaccination policy at this point? Or in the near future? Should you consider a non-mandatory vaccination policy?

Can you legally require your employees to be vaccinated?

Employers are legally permitted to require that employees be vaccinated, as long as exceptions are made for employees with disabilities or genuinely held religious beliefs. According to guidance issued by the U.S. Equal Employment Opportunity Commission, providing exceptions to a mandatory vaccination rule based on employee disability or religion should be handled on an individualized basis in the same way as any employee request for reasonable accommodation.

Once an employer is on notice of an employee request for such an exemption from a mandatory vaccination policy, the employer must engage in an interactive dialogue with the employee to determine whether the employer can accommodate the employee’s needs without undue hardship to the employer.

Reasonable accommodations may include, for example:

  1. Remote work arrangements;
  2. Modification of duties or work schedule;
  3. Prolonged use of personal protective equipment in excess of current safety requirements.

Employees may present disabilities or religious beliefs that qualify them for exemption from a mandatory vaccination policy. If they cannot be reasonably accommodated, they may be placed on a leave of absence or discharged if you have a safety-based qualification standard for the mandatory vaccination that requires an individual “shall not pose a direct threat to the health or safety of individuals in the workplace.”

Determination of whether a “direct threat” exists requires an individualized evaluation of four factors:

  1. The duration of the risk;
  2. The nature and severity of the potential harm;
  3. The likelihood of harm; and
  4. The imminence of the potential harm.

What if employees object to a mandatory policy?

When considering a possible mandatory vaccination policy, employers should determine whether the policy is consistent with business necessity, keeping in mind that there is a possibility of a complaint or legal claim if an employee believes he/she has been harmed as a result of the requisite vaccination(s). Also, some employees may object and claim that they are entitled to refuse the vaccination, causing friction, worker morale challenges and possible legal claims.

If an employer establishes a mandatory vaccination policy, it is incumbent on you to consistently and vigilantly enforce it.  Any employee who fails to meet the vaccination requirement absent a basis for a reasonable accommodation would be suspended or discharged.

For these reasons, among others, consider whether:

  1. A mandatory policy makes sense for your small business;
  2. A mandatory policy should apply only to a specific subset of your workforce based on a legitimate business reason, or;
  3. It is more consistent with your goals and workplace culture to enact a policy that encourages and educates employees to increase the likelihood of a vaccinated workforce.

Deciding what type of vaccination policy, if any, is appropriate for your business is complex and requires careful consideration. Similarly, establishing, implementing and enforcing the policy you choose will present challenges. Therefore, it is recommended you consult with employment counsel as you consider your options and move forward with your plan.

Tamsin R. Kaplan is a shareholder at Boston law firm, Davis, Malm & D’Agostine. She is an employment lawyer and business litigator, and serves as outside general counsel to diverse nonprofits and private schools. Tamsin frequently conducts workplace investigations, provides trainings on diversity and harassment, and advises employers regarding employee handbooks, employment audits, and workplace policies and practices. She regularly litigates cases involving employment and business disputes before federal and state courts and agencies. Tamsin can be reached at [email protected].

Vaccination policy stock photo by Studio Roux/Shutterstock