Keith Twitchell spent 16 years running his own business before becoming president of the Committee for a Better New Orleans. He has observed, supported and participated in entrepreneurial ventures at the street, neighborhood, nonprofit, micro- and macro-business levels.
As COVID-19 vaccinations become available to all adults in the U.S., and as government restrictions on business operations disappear, employers are facing a new dilemma: Should you require all your employees to get vaccinated before returning to the workplace?
Most experts believe that laws and government regulations make this legally permissible — with certain conditions — but other factors may influence this decision, especially for smaller businesses.
Per the Occupational Safety and Health Act, employers are required to provide a safe workplace. Current government guidelines indicate that requiring COVID-19 vaccinations falls under this requirement.
Specifically, in December 2020, the U.S. Equal Employment Opportunity Commission (EEOC) provided guidance indicating that employers can mandate vaccinations, though the wording is not 100% explicit. The guidance does require employers to “provide a reasonable accommodation for the religious belief, practice or observance” of an employee.
The language also states that if “a vaccination requirement screens out or tends to screen out an individual with a disability, the employer must show that an unvaccinated employee would pose a direct threat due to a ‘significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.’”
These caveats aside, the final EEOC conclusion is that “if an employee cannot get vaccinated for COVID-19 because of a disability or sincerely held religious belief, practice, or observance, and there is no reasonable accommodation possible, then it would be lawful for the employer to exclude the employee from the workplace. This does not mean the employer may automatically terminate the worker.”
The key phrase here is “reasonable accommodation,” which has not been clearly defined. Examples might be plexiglass shields, wearing PPE, working remotely and even allowing a leave of absence.
The other key government agency overseeing workplace safety, the Occupational Safety and Health Administration (OSHA), had not provided guidance as of this writing, but both EEOC and OSHA have previously stated that employers can require other vaccinations, such as flu.
Legalities aside, if you are an entrepreneur running a smaller business, myriad other considerations come into play.
The nature of the business and the workplace are primary factors. Given the circumstances, what threat would unvaccinated employees be to coworkers? To customers? Vendors or suppliers? Businesses with higher customer traffic and/or smaller workspaces are obviously at greater risk.
Also, companies doing international business should consider that going forward some countries may require proof of vaccination to enter.
How employees will respond to a vaccination mandate is also a crucial consideration. Some staff members might quit rather than get vaccinated; for small businesses, losing even one or two key personnel could cause a significant disruption. Public or legal complaints — even if not upheld — could also cause serious headaches.
At the same time, allowing some personnel to return to work unvaccinated could cause friction with vaccinated employees, and potentially cause some of them to quit as well.
Since everything COVID-19-related seems to be a moving target, one option may be to set a temporary policy. This could include allowing some staff to continue working at home for a while longer, or reconfiguring the workspace to allow more distancing. Given that acceptance of the vaccine appears to be increasing as more people receive it, this could buy a business some time while vaccine holdouts reconsider.
Staff education may also help. One major concern voiced by vaccination skeptics is that the development and approval process was so rapid that the shots cannot be considered safe. It’s important to remember that the scientific community has been working on this technology for years, and simply applied it to the coronavirus.
None of this is legal advice; if you have concerns or issues arise, consult an employment attorney. Hopefully, you will find a path forward that sustains workplace safety, keeps your employees happy and creates the framework for ongoing business success.
