As 2021 winds down, the struggles of managing a workforce during the COVID-19 pandemic continue. At a point when employers had hoped to be welcoming team members back to the office or ramping staffing back up to full shifts, infection rates returned to levels not seen since the early days of the pandemic.
Heading into 2022, one of the key challenges for human resources managers and company leaders is the decision of whether to require on-site workers and contractors to be vaccinated. This issue is evolving rapidly. Both the Equal Employment Opportunity Commission (EEOC) and the CDC have given employers the legal right to mandate vaccination policies, but within people’s rights and reflective of statutes, which may vary from state to state. Federal courts are already beginning to weigh in on the legality of vaccination requirements, and new mandates have been introduced and subsequently challenged on both the federal and state levels, with requirements yet to be determined.
Whatever course an organization sets, there are several best practices to follow in creating an effective policy. Considering each of these points can help HR teams develop a clear statement of the organization’s position, helping to secure employee buy-in and smooth implementation of new policies and procedures:
1. Learn the laws. Before attempting to draft a vaccination policy, consult with appropriate legal counsel to determine which laws apply, what rights they protect, and any limitations or conditions for employers or workplace operations. Companies with multistate operations should research each relevant jurisdiction. Although federal law allows employers to require vaccinations, lawmakers have introduced more than 140 bills on the subject and several states have already prohibited such mandates.
Pay close attention to whether a given rule applies to employers. In Texas, for example, Governor Greg Abbott attempted to pass an executive order that prohibited state or local vaccine mandates by government entities but did not address non-government employers’ requirements for their own employees. While this mandate failed to pass in the state legislature, it provides an important lesson: Even in states that allow workplace vaccination mandates, there may be exceptions, and failure to recognize legal nuances can result in discriminatory policies or lead to later litigation.
2. Educate the workforce. Employees are more likely to follow a policy when they understand the reason it exists and the benefits or protections it affords them. The CDC and OSHA have assembled a wealth of information that can help employers educate employees on the risks posed by COVID-19 and the vital role that vaccination plays in reducing its spread. Topics range from the CDC’s strategies to improve confidence in vaccines and methods of reducing infection risk, to OSHA’s latest coronavirus risk mitigation practices for the workplace. For employers that decide to encourage vaccinations without issuing a mandate, a strong education program may be their most powerful tool.
3. Make compliance convenient. Make it as easy as possible for employees to adhere to the company’s policy. If vaccination sites are difficult to reach from the workplace, consider providing transportation vouchers with a local ride service to ferry workers to and from their vaccination visit. Where feasible, consider arranging on-site vaccinations during normal working hours. Other potential incentives include childcare and paid time off during vaccination appointments, or even gift cards and cash.
As a legal consideration, review any planned incentives with counsel. As the EEOC warns in its COVID-19 technical assistance, incentives in an employer-administered vaccination program must not become coercive. For example, a large incentive that an employee feels they cannot pass up may make them feel pressured to divulge protected personal health information. Take care to avoid creating a hostile environment for employees who cannot or choose not to get vaccinated.
4. Develop transparent, enforceable policies and procedures. A COVID-19 vaccination policy should clearly state whether vaccination is voluntary or a mandatory condition of employment. To be enforceable, the policy must allow exceptions for medical conditions or religious beliefs.
Within the policy, describe how the employer will carry out program components developed in steps two and three above. If the organization will provide access to vaccinations, specify when, where and how. Also, describe the education program and any incentives offered.
From employees to contractors to temporary workers, the organization's entire workforce must receive and understand the vaccination policy and procedures. To aid in communication and comprehension, ensure that policy wording is clear and unambiguous. Transparent and executable rules and expectations set the stage for compliance.
Of special note regarding temporary labor, the CDC holds that the host employer and staffing agency are joint employers and therefore share responsibility for maintaining a safe work environment. Include temporary workers in all employee communications on workplace safety issues including COVID-19, and coordinate with the staffing company to understand and meet their requirements. In the employer’s contract with the staffing agency, be sure to describe the extent of each party’s responsibilities for maintaining workplace safety.
The Way Forward
Despite surging infection rates, the United States is making progress in its fight against COVID-19. More than half of the nation’s population has been vaccinated against the disease. Although vaccines are not completely effective in preventing transmission, according to the CDC, vaccination provides strong protection against serious illness and death. As more workers return to jobsites and workplaces, intelligently crafted vaccination policies will play an increasingly important role in protecting their health and safety.