Vaccination Policy: What Every Employer Needs to Know [Updated October 4, 2021]

The national Covid-19 vaccination program has stalled, with just over half of Americans now fully vaccinated. As a result, the federal government has decided to step in. In September, President Biden ordered mandatory vaccination policies that would impact federal workers, government contractors, and some private firms.

This legislation is still taking shape. Bodies such as OSHA and the Safer Federal Workforce Task Force are working on Emergency Temporary Standards that will offer guidance to employers. However, we can also expect to see legal challenges, especially from those states that have already passed legislation that forbids mandatory vaccines.

It’s a complicated situation. Most employers just want to know the answers to two questions:

• Are my employees safe?
• Do I have to worry about new compliance requirements?

Let’s talk about what we know so far:

1. How the vaccine mandate affects federal workers
2. How the vaccine mandate affects government contractors
3. How the vaccine mandate affects private employers
4. How employment law impacts a mandatory vaccination policy 
5. How to build a fair and flexible vaccination policy at work

How the vaccine mandate affects federal workers

All federal workers must be fully vaccinated by November 22, 2021.

This deadline is a little more complex than it might seem. Fully vaccinated means that the employee has allowed a sufficient amount of time to pass for the vaccine to take full effect, which varies depending on the vaccine. Effectively, it means:

• Employees must have received first shot by November 8 if receiving:
  • Janssen
  • Johnson & Johnson
• Employees must have received second shot by November 8 if receiving:
  • Pfizer-BioNTech (21 days after first shot)
  • Moderna (21 days after first shot)
  • AstraZeneca/Oxford (up to 12 weeks after first shot)

All federal workers must provide proof of vaccination, even if they are 100% remote workers.

For more information about mandatory vaccines for federal workers, see the Safer Federal Workforce Task Force website.

How the vaccine mandate affects government contractors

Government contractors and subcontractors will effectively fall under the same rules as federal workers, although there are many more grey areas.

The vaccine rules apply to:

• All new contracts issued after October 15
• Contracts issued after November 14, if based on a solicitation issued before October 15
• Extensions or renewals of existing contracts agreed after October 15
• Options exercised after October 15

The rules don’t apply to orders that fall below the Simplified Acquisition Threshold ($250,000 in most cases). However, the task force will encourage all agencies to include a vaccination clause in all agreements, regardless of value.

Covered contractors (the individuals working on the government contract) must meet the vaccination requirements, even if they are working from home.

What happens when an office has a blend of covered contractors and other employees? According to the task force guidelines, employers must keep these groups apart. Non-covered employees should be in a different building, or else on a different floor with no shared facilities.

The logic behind this latter rule seems to be that some contracting firms may also have unvaccinated employees working on private contracts. The federal vaccine mandate does not necessarily cover these team members. With that in mind, the government wants to ensure that unvaccinated people don’t have contact with – and potentially infect –covered contractors.

How the vaccine mandate affects private employers

Perhaps the most contentious part of the new law is the requirement for private companies.

The proposed legislation will apply to all organizations with more than 100 employees. Every member of staff must either:

• Provide evidence of vaccination
• Pass a weekly Covid-19 test

This aspect of the legislation is still being fleshed out, but it is already likely to run into legal challenges. Montana and North Dakota have both passed state-level legislation banning mandatory vaccines.

Twenty other states, including Florida and Texas, have banned any official documents that could be used as “Vaccine Passports”. Without such passports, it could be hard to enforce a vaccine mandate at scale.

The government have yet to clarify the compliance requirements of new rules. For example, how should companies keep track of weekly test results? Hopefully, all of these questions will receive answers in the coming weeks.

How employment law impacts a mandatory vaccination policy 

The Covid-19 response is an evolving situation, with regular changes to the rules and guidelines issued by federal authorities. For employers, this makes the situation even more challenging, as you have to tread carefully in case your policy turns out to be discriminatory.

The Equal Employment Opportunity Commission (EEOC) has been one of the most important bodies in these decisions, as they play a major role in defining what employers can and can’t do. The EEOC updated its operating guidelines at the end of May 2021 to include the following Covid-specific guidelines for employers:

• You can exclude an unvaccinated employee from the workplace “so long as employers comply with the reasonable accommodation provisions of the ADA and Title VII of the Civil Rights Act of 1964 and other EEO considerations.” You also need to be mindful of state or local laws that might impact your business.
• You should be mindful of the fact that some people or groups may not currently have access to the vaccine. The program is still rolling out, so you must not discriminate against those awaiting their turn.
• You can offer vaccine incentives to employees. When you ask to see proof of vaccination, you must stay with the confidentiality rules set out in the Americans with Disabilities Act.
• If you do offer incentives, they can’t be coercive. The EEOC doesn’t specify a dollar limit on incentives but do try to be aware of the fact that a large incentive could make employees feel unduly obliged to engage in the vaccination program.
• Employers can actively provide educational information to employees and their families about Covid-19. This includes information about the benefits of getting vaccinated.

There are also a few key facts worth knowing when you define your vaccination policy:  

• OSHA rules mean that you have to create a safe workplace for all, and Covid-19 counts as a legitimate threat to employee safety.
• Vaccination is not considered a form of medical screening, and therefore you don’t need to show a clear business requirement, as per the Americans with Disabilities Act (AMA). However, Covid-19 tests do count as a screening. 
• If you have a mandatory vaccine policy, you must provide an exemption for anyone who can’t have the vaccine for medical reasons or due to a sincerely held religious belief.  
• With government contractors, the contractor and agency act as a dual authority when deciding whether to offer an exemption. 
• The Office for Civil Rights has issued a reminder that HIPAA rules only apply to healthcare providers.

These rules will continue to evolve in the coming months as the vaccine rolls out. Doubtless, there will also be legal challenges that will impact vaccination policy at a state and national level. The challenge for employers is to build a flexible approach that suits all circumstances.  

How to build a fair and flexible vaccination policy at work

Most employers would rather avoid a situation where they are debating vaccine rules with their team. Instead, it's better to work with the team and help them get vaccinated voluntarily. 

That's why most companies are following a vaccine policy of Engage, Encourage, Accommodate. Here’s how. 

1. Investigate employee attitudes

2. Educate and inform

3. Help people get vaccinated

As mentioned above, you may run into trouble if you offer certain incentives for vaccinations. But there’s still a lot you can do to help. 

For instance, you can post details of the vaccination program and help employees to arrange their appointments. You can offer flexible working patterns around appointment times and help organize transport. Later in the year, employers may be able to offer in-office vaccination programs, which will boost uptake.  

4. Keep track of vaccinated workers 

Employers have a right to ask workers if they’ve been vaccinated. It’s also easy to verify, as vaccination clinics will issue a certificate after you get your shots. You should always keep track of who’s inoculated and who is not.  A word of caution, though: you still have to treat employee medical information according to existing privacy rules.

This means that you can’t store health data in general employee files. You also can’t make employment decisions based on this information. If someone claims a medical exemption, be careful about asking follow-up questions. You may inadvertently cause them to reveal sensitive health information, which breaches their right to privacy.  

5. Accommodate non-vaccinated workers where possible

Which brings us to the ultimate issue: can you fire someone for not getting vaccinated?

There have been a few cases of terminations across the country so far, although none of these has been challenged in court. It’s also worth noting that mandatory vaccination policies are nothing new. Health workers generally require an annual flu vaccine, for example. 

In terms of government contractors, the agency can now find the contractor in breach if they do not meet vaccine requirements. 

But the majority of employers won’t want to go down that road. Before you start thinking about enforcement, think about what you can do to Engage, Encourage, and Accommodate. 

Want to know more about the post-pandemic future? Visit our Covid-19 resource center.