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Why Managers Must Educate Themselves Before Implementing a Vaccination Policy

Published on: May 25, 2021

While vaccines have been highly anticipated throughout the COVID-19 pandemic, many people remain hesitant about receiving theirs. Others may be unable to receive the vaccine due to underlying medical conditions. Still, a major question lingers for employers: “Can vaccination be mandated in the workplace?” There is no simple answer to this question, and NYCA maintains no position as to whether employers should require vaccinations. However, if this question has been asked in your office, it is worth educating yourself and the rest of your company’s management team on the facts and circumstances surrounding this topic before making a decision.

Guidance on this matter was issued by the Equal Employment Opportunity Commission (EEOC) in December 2020, mere days after the first dose of the vaccine was administered in the United States. Nowhere does this guidance explicitly state that employers can mandate vaccination. However, the EEOC does provide one scenario in which vaccination could be mandated without violating the Americans with Disabilities Act (ADA) or infringing upon sincerely held religious beliefs. According to the EEOC, mandated vaccination in the workplace is permissible if the physical presence of an unimmunized employee presents 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.” This circumstance allows for mandated vaccination or exclusion of employees who are unable to receive the vaccine. However, it also means that vaccination likely cannot be required if an employee can perform job duties remotely without the risk of spreading the virus to co-workers or work-related third parties. You can read more on NYCA’s Covid-19 resources for unvaccinated workers here.

Even with the EEOC’s guidance, there are numerous other variables that must be taken into consideration before deciding whether to require vaccinations and whether to apply the requirement to some or all employees. These include but are not limited to:

  • State and local laws regarding vaccination: particularly future legislation that might require a COVID-19 vaccination
  • Maintaining confidentiality of medical information: employers will want to take extra care that in the process of getting their employees vaccinated and requiring proof that they are not violating HIPAA standards
  • What proof of vaccination can be required?
  • Can claims be asserted against an employer for adverse reactions to a vaccine (and what is the likelihood such claims would be successful)?

Furthermore, employers must be prepared to articulate how mandated vaccination is related to job function and consistent with business necessity.
Because of the complexities inherent in these considerations, many employers are electing to “strongly encourage” vaccination, rather than mandate it. Encouragement can take the form of initiatives to educate teams on the benefits and safety of the various vaccines, as well as the risks that come with not being vaccinated. Employers can also take the extra step of providing information about local vaccination providers. This can ease the process of securing a vaccination appointment.

Regardless of whether a vaccination mandate is implemented, this is a decision that requires thorough research, education, and deliberation by management. Further information and consideration regarding this matter can be accessed here, and we encourage members to conduct their own research, as well.