By Nora Gustafson, J.D.
As coronavirus vaccines are currently in the process of being distributed to priority patients, it looks like the end of the global health crisis is finally in sight.
In many states, clinical dental personnel qualifies for priority vaccine distribution. For some practice owners, this means that many of your employees could have already received their first dose of the Covid vaccine, or are eligible to be vaccinated as soon as doses become available (check with your state health department to see who qualifies to receive vaccines in your state and when).
Of course, the availability of the vaccine has many doctors wondering what it’s going to take to get everyone at their practice vaccinated as soon as possible. And, as with most HR topics, answering that one question gives rise to a number of others.
Read on for answers to many of the most common Covid-vaccine queries we’re hearing in CEDR’s HR Solution Center.
Can I require my employees to get a vaccine?
Employees may be able to exempt themselves from such a requirement for certain religious and health-related reasons. Some cities and states also prohibit mandatory vaccinations in some situations, so make sure you check with an HR or employment law expert about the laws in your area before requiring your employees to get a vaccine. For reference, here is a list of state immunization laws from the CDC.
Unfortunately, the question of mandating vaccines in the workplace is not as simple as whether or not it is legal for you to do so. Rather, the final determination is more a matter of whether or not you should require vaccines at your practice.
Should I require my employees to get a vaccine?
The potential legal and practical repercussions are serious enough that, as with any other vaccine not required of your employees by law, CEDR’s expert HR Advisors suggest that employers simply encourage their employees to get a Covid vaccine once it is made available to them rather than requiring them to get one.
For more on the potential complications associated with requiring employees to get vaccinated, check out CEDR’s blog on the subject.
How do I effectively encourage my employees to get vaccinated?
There are a number of things you can do to combat vaccine skepticism and encourage vaccination of your team members without requiring them to get the shot. Here are a few ideas:
Set Up a Clinic at Your Office
One of the best ways to incentivize vaccinations for your employees is to make it as easy and affordable for them to get a vaccine as possible. The CDC has guidance on how to host a vaccination clinic and how to administer vaccines.
Educate Your Team
Inform your employees about the importance of being vaccinated and the safety of the vaccine during team meetings and provide them with convenient ways to get more information, should they need it. The CDC has a helpful page on Talking to Recipients about COVID-19 Vaccines here.
Lead by Example
The best way to illustrate a behavior you would like to see from your team is by modeling that behavior from the top down.
Talk openly about your plans to get vaccinated. Take photos or videos of yourself and your employees getting vaccinated whenever possible, then send them in an email to your entire team or post them on your company’s social media channels.
The more your team members see individuals in their inner circle getting vaccinated safely and moving on with their lives, the more the stigma surrounding the vaccine will diminish, which will make your skeptical employees more inclined to get vaccinated themselves.
If my employees refuse to take the vaccine to protect themselves and the practice, do I still have to give them sick or FFCRA pay if they get Covid?
In short, yes. If you allow your employees to decide whether or not to get vaccinated and some of them refuse but then get infected with the novel coronavirus, you would need to treat those employees just the same as you would anyone who had been vaccinated and got sick anyway.
The problem here is that you will have no way of knowing whether anyone particular employee refused the vaccine for a legally protected reason or for a reason that is not protected by law. And, as with any other policy you enforce for your practice, your policies regarding the distribution of sick pay, FFCRA pay, and other benefits need to be handled consistently with all employees at your business.
If you were to require the vaccine (which, again, we advise against), you could force your employees who refuse the vaccine to prove that their refusal was for a legally valid reason (by asking them to provide a letter from their pastor citing a religious conviction against vaccines or a letter from their doctor explaining their medical justification for refusing). But, even with this information in hand, it would not give you the right to selectively apply your PTO policies or to decide whether you wanted to comply with state laws about sick pay, for instance.
And, just as a reminder, note that employers are no longer required to offer FFCRA pay to their employees at all in 2021 (at least, that is, not so far). You may still offer those payments voluntarily to employees who have not yet used up their bank of two weeks of emergency sick time and ten weeks of time to care for a child whose school or place of care has been closed through March 31, 2021, however. And, if you choose to make those payments, you can still collect tax credits for them through the end of March as well, but you are not currently required to do so.
Still, if you are continuing to offer FFCRA and/or sick pay to your employees at all, you’ll need to continue to do so consistently for all of your employees–even those who might refuse to get a Covid vaccine.
How about trying a financial incentive to getting vaccinated?
We’ve had several Solution Center Members ask us about whether or not they should tie vaccination to a financial incentive at their offices by, say, offering $200 to employees who get a vaccine. While we understand why this might seem like a good option to many employers, we recommend against doing so.
The problem here again comes back to those employees who have legitimate medical or religious reasons that prevent them from getting vaccinated. Where offering a financial incentive might be enough to coax some skeptics to get a vaccine, it could be perceived as discriminatory by those who are unable to get vaccinated.
Though you might be within your legal rights to offer such an incentive, as with mandating that your employees get a Covid vaccine, doing so could have a negative impact on team morale if it causes certain employees to feel singled-out for their religious, medical, or other objections.
What about PPE?
Keep in mind that working in a dental office means that there will always be some level of risk of coronavirus exposure in your office. You can’t control whether or not your patients receive the vaccine, for example, and we have yet to see how long the vaccine will work to prevent infection. Plus, even though the available vaccines have efficacy rates in the high-90-percent range, some people may still be able to get sick and/or spread the virus even after getting the vaccine.
That said, even if all of your employees were vaccinated at the earliest possible convenience, there would be no way to ensure your team was 100 percent protected from the novel coronavirus.
So, whether or not the entire team has been vaccinated, employers should still follow CDC guidelines on preventing the spread of Covid. This means continuing to practice social distancing and wearing the appropriate PPE in the office for the foreseeable future.
What if I want to require the vaccine anyway?
If you feel that you have a compelling enough reason to justify mandating vaccinations for your employees despite all of the drawbacks, here is what you need to know:
- You will need to pay for the cost of the vaccine and for the employee’s time spent getting the vaccine.
- The requirement to get the vaccine needs to be directly tied to the employee’s job duties/description. In other words, there needs to be an objective, job-related reason for requiring a specific vaccine.
- You need to consistently enforce your vaccine policy.
- If an employee requests a religious or medical accommodation, you need to follow the accommodation process described on the CEDR blog diligently and ensure employees are not retaliated against in any way for bringing their concerns forward or discussing them with other employees. Even the appearance of retaliation will get you in trouble.
- All vaccination records should be included in a separate personnel file designated for confidential medical information.
- Create a written policy that explains the compelling reason for requiring the vaccine, the process, confidentiality measures, and how to seek a medical or religious accommodation.
Can I fire someone who refuses to get the vaccine?
If you have 15 or more employees, then your business is subject to the Americans with Disabilities Act and Title VII of the Civil Rights Act, which means that your employees’ medical and religious objections to vaccination are protected by law. Some states, counties, and cities offer similar legal protections for smaller employers, as well. If your business is subject to such laws, you cannot terminate your employees for refusing a vaccine for a protected reason.
Even if you can legally terminate your employees for refusing a vaccine, the potential ramifications of doing so should be carefully considered. Will terminating your employees for not getting vaccinated result in an excessive amount of work falling on your remaining employees? Will you be able to find a suitable replacement in a reasonable amount of time? Will terminating certain employees for refusing a vaccine create a backlash from the rest of your team?
In short, make sure you have an idea how the termination will play out for your business before letting someone go for refusing to get vaccinated.
The EEOC has suggested that employers can require their employees to get a Covid vaccine in most cases. However, there are notable exceptions to this rule related to employees with legitimate medical or religious concerns. Some state and local laws covering vaccinations may also prevent some employers from requiring their team members to get vaccinated.
That said, because of the numerous legal and practical considerations associated with mandating a vaccine, the expert HR Advisors in CEDR’s Solution Center generally recommend that employers encourage their employees to get vaccinated and make it easy for them to do so, rather than making it a requirement of employment.
We’re all anxious for life to get back to “normal,” whatever that will mean moving forward. But, where the availability of a Covid vaccine is certainly an important step in that direction, vaccines won’t remove all risk of coronavirus infection for your team or your patients, and mandating them for your employees is likely to be more trouble than it’s worth in most cases.
If you still have questions about mandating vaccines for your practice, you can read more on the topic on the CEDR blog, or - even better - crowdsource answers from CDHR's HR experts and 9,000 other business owners and managers in the private, professional Facebook forum, HR Base Camp.
For more free coronavirus resources for employers, check out CEDR's 2021 COVID Updates and Resources page.
Nora Gustafson, J.D.
Nora Gustafson is an Arizona-barred attorney and graduated cum laude from George Washington University Law School. As an HR expert and employment law consultant at CEDR HR Solutions, Nora provides HR guidance to dental employers all over the country on issues related to hiring, firing and everything in between.