As COVID-19 vaccinations become available to the general population and more people are getting their shots, many organizations are considering what their vaccination policy needs to be. TSNE is sharing these recommendations which are based on our own internal policy as an organization that places the health and wellness of our staff as a top priority. We chose a strongly recommended vaccination policy together with a phased/hybrid return-to-workplace plan in order to balance legal considerations and our staff's health.
About These Recommendations
This set of recommendations is intended to help guide you in the creation of your organization’s vaccination policy in preparation for a “return-to-office” plan. TSNE recommends these strategies, and is providing this advice to the nonprofit sector on creating a policy that balances legal compliance with the health and safety of your staff. This is not legal advice, and should not be construed as such. Please consult with your attorney when creating and implementing your own vaccination policy and return to office plan. These recommendations were compiled from resources provided by Littler Mendelson P.C. and the US Equal Opportunity Employment Commission.
In addition to a vaccination policy, you should also:
- Follow federal/state public health guidelines regarding any office return plan
- Determine what your employee return plan would look like. TSNE has created a guide to our recommended best practices for returning to on-site work
Before you start: Can Employers Mandate Employee Vaccination?
Employers may be able to legally mandate that most of your employees, depending on your organization’s work, be vaccinated before any return to in-office work, but EEOC recommends strongly recommending, rather than mandating, vaccination for employers.
Some Additional Potential Risk and Liability Considerations of Mandating Vaccinations
Potential for Increased Workers’ Compensation Liability
Under existing law, if an employee received a vaccine mandated by their employer and the employee has an adverse reaction (ranging from minor to significant), the employee can make a workers’ compensation claim for the injury.
May Create Obligation for Compensable Time and Expense Reimbursement
If vaccination is mandated, you may need to compensate employees for time and/or expenses (e.g. travel) incurred as part of vaccination, depending on your employment structure.
Opens the Door to other Potential Employment Issues
A vaccine mandate could open the employer up to more employment issues specifically:
- If an employee refuses to take a vaccine
- Responding to and vetting more ADA accommodations request
- Responding to and vetting Civil Rights Act exception claims
- If you make a decision an employee disagrees with, you may be sued. Currently, there is limited guidance to follow in making these decisions regarding COVID-19
Returning Too Soon
Requiring non-essential employees to return before the vaccine is easily available to the general public could open the door to potential “unsafe work environment” claims, especially if your organization has operated virtually for the last year.
What are Other Employers Doing?
Littler conducted a survey of 1800 employers regarding their vaccination and return to on-site work plans. The results of the survey are available at: https://www.littler.com/files/littler_vaccine_employer_survey_report.pdf
Vaccination policy recommendations
- RECOMMENDATION 1: Follow the EEOC recommendation to strongly encourage, rather than mandate, vaccination of employees
- RECOMMENDATION 2: Wait until the vaccine is widely available and administered before returning to the office
- RECOMMENDATION 3: Consider allowing those non-essential employees who have been vaccinated to return to on-site work first
- RECOMMENDATION 4: Follow all federal/state public health guidelines and recommendations for returning to on-site work