The speed and efficacy with which COVID-19 vaccines have been developed is a testament to human ingenuity and the drive to create a safer world for us all. The three vaccines that are widely available in the U.S. (Moderna, Pfizer and Johnson & Johnson) have all received emergency authorization by the FDA after demonstrating both efficacy and safety, but there are other issues your clients may want to consider when deciding on how to approach a vaccine policy.

What options do employers have?

There are three main courses of action your clients could take when it comes to employees and vaccines:

  • Do nothing. This means choosing not to implement a company-wide vaccine policy and not advocating for and encouraging vaccinations. Doing nothing may not be the optimal choice from a public health perspective, but it’s certainly a valid one from a legal standpoint. Mandating or incentivizing vaccination could help to reduce increased costs or absenteeism from employees, but it can also lead to exposure to legal liability depending on how such policies are implemented (and how litigious employees are).
  • Encourage and incentivize vaccination. This is a gentler approach than outright mandating vaccinations as a condition of continued employment. Encouraging employees to get vaccinated is legally safe, although it may run the risk of upsetting employees who don’t believe in vaccination, who have concerns about vaccine safety, who have health considerations that keep them from getting vaccinated or who simply don’t like feeling pressured when it comes to managing their health. Incentives, such as offering paid time off or a bonus to employees who get vaccinated, must be carefully implemented, however. Aside from the cost considerations that comes with bonuses and incentives, employers may find themselves legally liable for any issues that arise from implementing on-site vaccinations.
  • Mandate vaccination. This is an aggressive option, but it’s certainly the most effective from the point of prioritizing the health and safety of employees. Mandating that employees get vaccinated is generally legal (although it may not be in some states), but it’s possible that some implementations could put your clients at legal risk (for example, setting up on-site vaccinations or inquiring about employees’ personal health to determine their eligibility for vaccination).

Which employees should get vaccinated first?

Until vaccines become more widely available, it’s best to prioritize employees who are most vulnerable to exposure and at greatest risk of complications from COVID-19. Of course, in health care and senior care industries, everyone with regular contact with the ill and elderly should be vaccinated. Outside of these industries, your clients should consider prioritizing:

  • Employees who work in close physical contact
  • Employees who have regular exposure to customers and other members of the public
  • Employees who have regular exposure to heavily trafficked enclosed spaces, food products or other settings where infection may be a risk
  • Employees who are 65 or older
  • Employees who are 16–65 with underlying medical conditions that increase the risk of life-threatening COVID-19 complications

What are the risks of implementing a vaccine policy?

Your clients could get into legal trouble if pre-screening vaccination questions aren’t job-related and consistent with the requirements of their businesses. To avoid this outcome, they should make sure that any pre-screening questions are related to the job and that they can prove that unvaccinated employees pose a direct threat to the health and safety of other employees. Similarly, your clients could get into legal trouble if they attempt to prevent workers’ concerted activity, such as expressing opposition to mandatory vaccines.

Employers should make sure to follow state and local laws, as well. Some locales may have prohibitions against mandating vaccines that more strict than state or federal law.

Setting a policy and moving forward

Before settling on the policy that’s best for their company and their employees, there are a few final things your clients should consider.

  • Make sure to follow all federal, state and local laws. Your clients won’t want to put their organization at risk of legal exposure. It’s best to do some research and stay up-to-date on the latest laws and regulations.
  • Get a sense of how their employees feel. If your clients have employees who feel very strongly about vaccines, either adopting a mandatory policy or doing nothing may cause disquiet. Taking surveys of employee sentiments can be a good way to decide how to craft a message.
  • Identify who should be doing the communication. Figures like respected managers, team leaders and union officials can be excellent ambassadors for company policies, especially in larger organizations where employees may not have personal relationships with upper management.
  • Be transparent. As always, communication is key when it comes to rolling out new policies that can affect employees’ work lives. Your clients should let employees know both what their COVID-19 vaccine policy is and how that position was reached. They should be sure to listen to and address employee concerns, even if the company’s policy remains firm.

Regardless of what policy your clients decide to implement, wearing masks and respecting social distancing will stay important aspects of infection management. Even as vaccines become more readily available, maintaining practices and procedures to minimize the chance of infection and help their entire organization stay healthy is essential.