UPDATED 12/20/2021, after the Sixth Circuit lifted the stay of OSHA COVID-19 ETS.
On Friday, December 17, 2021, a three-judge panel of the U.S. Court of Appeals for the Sixth Circuit lifted the Fifth Circuit's stay that had prevented the Occupational Safety and Health Administration's (OSHA) Emergency Temporary Standard (ETS).
Considerations Before Implementing a Mandatory Vaccination Policy
Many HR managers and employers continue to grapple with the issue of whether to mandate COVID-19 vaccinations within their organizations. For some employers, the decision on whether or not to mandate vaccines is out of their hands, upon the Biden Administration and OSHA's Emergency Temporary Standard (ETS). The new ETS, if implemented, requires businesses of over 100 employees to either require COVID-19 vaccines or weekly test results.
However, for HR pros that aren't required to mandate it, and do decide to use implement a mandatory COVID-19 vaccination policy, should be aware of and think through the following issues prior to implementation:
There is a very real chance that implementing a policy like this will lead to resignations or terminations, some of which may be surprising. Be prepared for the consequences of implementation.
State or local law may make this policy unenforceable. As of August 12, 2021, the only state we are aware of that would disallow a policy like this is Montana, but employers should do their due diligence, as the law can change rapidly.
The exceptions in this policy for disability, pregnancy, and religion are required by federal law if you have 15 or more employees. They may also be required by state law at a lower employee count depending on where you operate. The exceptions should not be removed without speaking to an attorney.
We recommend paying employees for the time it takes to get a mandatory COVID vaccine, regardless of whether it’s during their normal working hours. This may be required in certain states, counties, or cities. The federal Fair Labor Standards Act (FLSA) is unclear on whether these would be considered “hours worked,” making this an area that is likely to be litigated. If you don’t want to compensate employees for their time to get the COVID vaccine, we recommend consulting with an attorney for a legal opinion.
Employers may be eligible for a tax credit from the IRS for providing paid leave to get a COVID vaccine under the American Rescue Plan Act (ARPA), which extended the FFCRA.
Under the National Labor Relations Act (NLRA), employees at all types of organizations have a protected right to discuss the terms and conditions of their employment, both publicly and privately. This includes vaccine mandates. Employers should not attempt to stop employees from complaining or retaliate against those who do in any way. If the disruption caused by employees who are unhappy about the mandate is so significant that it requires action on the part of management, a competent employment or labor attorney should be involved in determining next steps.
This policy can be distributed and acknowledged electronically.
Employers should take steps to ensure that all employees receive this policy in a timely fashion and should adjust the deadlines as needed for employees who do not receive the policy on or near the intended date of distribution.
Just because you are following your own valid policy does not mean a termination is without risk. If you will be uncomfortable executing this policy as written, we recommend speaking with an attorney prior to policy roll-out.
Sample Mandatory Vaccination Policy (for COVID-19)
The health and safety of our employees and their families is our top priority. Due to the ongoing nature of the COVID-19 pandemic and the fact that the Delta variant is extremely contagious, we have decided to require vaccination as a condition of employment.
The Company will make reasonable accommodations when possible for employees who are unable to be vaccinated because of a disability, pregnancy, or sincerely held religious belief. If you believe you qualify for an exception, please speak with Human Resources by [Deadline (recommend one to two weeks from the date they receive the policy)] and be prepared to provide documentation. Accommodations may include, but are not limited to, one or more of the following: regular testing, continued masking, change in job duties, or unpaid leave.
Failure to vaccinate, without an approved exception, will result in termination.
Employees have until [Deadline (recommend two weeks from the date they receive the policy)] to show proof of being fully vaccinated or of getting their first shot, if receiving the Pfizer or Moderna vaccines.
Employees will have until [Deadline (recommend six weeks from the date they receive the policy)] to show proof of getting their second shot, if receiving the Pfizer or Moderna vaccines.
Employees hired after this policy takes effect will be required to show proof of being fully vaccinated or of getting their first shot, if receiving the Pfizer or Moderna vaccines, within two weeks of hire.
Employees hired after this policy takes effect will be required to show proof of getting their second shot, if receiving the Pfizer or Moderna vaccines, within six weeks of hire.
If you are having trouble making a vaccine appointment or finding a vaccine provider, please contact Human Resources; we will try to assist you.
Time Off and Pay
Employees will be provided with time off work to receive the vaccine, if necessary. Please coordinate with your manager.
*** Employers considering options 2, 3, or 4 must ensure that they comply with state and local law. Employers applying for tax credits through the IRS for FFCRA leave should indicate if any additional documentation is needed from employees.
Option 1: Employees will be paid for time spent getting vaccinated and are required to record it on their timesheet.
Option 2 (for multi-location employers who only want to pay if required): If required by law, employees will be paid for time spent getting vaccinated and are required to record it on their timesheet.
Option 3: Employees will receive two hours of pay for each shot received.
Option 4: Employees may use any available paid time off to get vaccinated. ***
Employees will be required to show proof of vaccination, such as their CDC COVID-19 Vaccination Record Card or the vaccination record maintained by their healthcare provider. Employees who have lost their card may contact the Immunization Information System (IIS) in their state; the CDC provides links to state IIS pages This documentation will be treated as confidential.
I have received and read a copy of the Company’s Mandatory COVID-19 Vaccination Policy. I understand that failure to comply with this policy, or receive a management-approved exception, will result in termination.
The GoCo team is working hard to support HR pros through COVID-19. Visit our COVID-19 Resource Center for more tools and tips.