By: Karen Davila
Read part 1 previously published on 11/1/20.
DOES YOUR BUSINESS NEED A MANDATORY VACCINE POLICY?
Given the above, does a mandatory vaccine policy make sense for your organization? This may depend on several factors, including the following:
- Are your employees in direct contact with clients/customers/patients?
- Is that contact prolonged and in indoor spaces where air circulation may be limited?
- If one or more of your employees become ill, does that jeopardize continuity of your business?
If you answer “YES” to one or more of these questions, you may want to consider implementing a mandatory flu vaccine.
In order to effectively implement a mandatory vaccination policy, you must develop both the policy and the process to manage exceptions (i.e. requests for accommodations). The process generally involves the submission of an employer-developed form along with any additional supporting documentation. The accommodations process should include review of information submitted by the employee in support of the accommodation, request for additional information as and when appropriate, an interactive process between the employer and employee in evaluating any potential accommodation, and ultimately a determination if the requested accommodation poses an undue burden that is more than de minimis on the employer.
As you prepare for review of any exceptions, assure you have mechanisms in place to address the following:
- Understand and assess the essential functions of the job performed by the employee.
- Analyze various options for accommodations in the context of employee’s specific job and essential functions.
- Review accommodations offered to other employees in similar instances.
- Analyze undue hardship to the employer and safety risks of any exception.
- When necessary for clarity or understanding, engage in interactive dialogue with employee.
- Document and communicate your decision to the employee.
For accommodations based on the ADA, this process is fairly straight forward and well-developed in the business world. In the case of a mandatory vaccine policy, the accommodation is often the requirement to wear a face covering (or other PPE) or use of a different formulation of the vaccine. Bottom line, if the employer receives documentation from a treating health care provider that the employee has a medical condition that contraindicates vaccination, an accommodation is generally offered.
On the other hand, if an accommodation is sought based on Title VII, the employee bears the burden of proof to establish that s/he has a sincerely held religious belief in opposition to the vaccine. Understanding the nature of the belief, weighing the risks/benefits of any accommodation that might be granted, and engaging in an interactive dialogue with the employee are critical steps before any decision to deny an accommodation.
While mandatory vaccination programs are becoming more commonplace, particularly in industries with direct and prolonged contact with clients/customers/patients (especially in the health care industry), these programs must be implemented with the recognition that it will be necessary to manage the almost certain requests for accommodations that will immediately follow. And, when managing particularly challenging requests for accommodations, it is advisable to involve legal counsel early in that review.