On April 29, 2021, The Boston Globe published an editorial entitled, “It’s time for employers to impose vaccine mandates.” According to The Boston Globe Editorial Board, “COVID vaccines, which are extremely safe and effective, are Americans’ way out of this nightmare, and employers – including the state – owe it to their workers and the public to create safe working conditions.”

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?

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, remote work arrangements, modification of duties or work schedule, or prolonged use of personal protective equipment in excess of current safety requirements. Employees who present disabilities or religious beliefs that qualify them for exemption from a mandatory vaccination policy but cannot be reasonably accommodated may be placed on a leave of absence or discharged if the employer has 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 these 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.

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 the employer 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 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, we recommend you consult with employment counsel as you consider your options and move forward with your plan.