Pros & Cons of Mandatory Vaccine in the Workplace for Small Business Owners

As the vaccine roll-out continues, people across the country take a small sigh of relief. However, small business employers face the dilemma of whether to mandate their employees to get the vaccination or not.

The Equal Employment Opportunity Commission ("E.E.O.C.") has provided that companies can mandate a vaccine as a requirement to return in-person work. Federal equal employment opportunity ("EEO") laws do not prevent an employer from requiring all employees who physically enter the workplace to get the COVID-19 vaccination, subject to reasonable accommodations of Title VII, the Americans with Disabilities Act of 1990 ("A.D.A."), and other EEO considerations. Some examples of reasonable accommodations include unvaccinated employees wearing a face mask, keeping social distance, completing a periodic COVID-19 test, or working telework. Although the E.E.O.C. only extends to federal EEO laws, states may enact regulations related to vaccination programs. However, it's important to heed the caution of the E.E.O.C. to ensure that employers do not run afoul of EEO laws that discriminate against employees based on protected categories.

The E.E.O.C. also states that employers may offer non-coercive inducements or bonuses to encourage employees to get the vaccine as long as the incentives are voluntary. The incentive policies comply with A.D.A. and Genetic Information Nondiscrimination Act ("GINA") if the vaccination records remain confidential and classified separately from the employee's personnel file. If the employer is an agency that offers vaccines, the employer may offer incentive rewards or penalties; however, they must not be "so substantial as to be coercive." The E.E.O.C. has not defined "coercive" besides suggesting that it can be coercive to offer a considerable incentive causing an employee to feel pressure to disclose protected medical information. Family members may be vaccinated through an employer-administered program, but employers may not provide incentives for them.

Things to Consider When Deciding to Mandate the COVID-19 Vaccine

Some things that small businesses should consider before deciding whether or not to mandate the COVID-19 vaccine in their business are the nature of their business and how the implementation of the COVID-19 vaccine might affect productivity. There are legal and business repercussions for mandating or not mandating the COVID-19 vaccine.

Benefits

One of the benefits of mandating the COVID-19 vaccine is the American Rescue Plan allows business owners who provide full pay for employees that need to take time off for the COVID-19 process and recovery to claim it as a tax credit. Businesses that want to claim the tax credit must meet the eligibility requirements. The American Rescue Plan ensures that any employer who allows its employees to miss work to get vaccinated will not lose profit. In addition, providing paid time off for vaccinations promotes safety, productivity, and health in the workplace and community.

The COVID-19 vaccine mandate is a preventative measure that averts employees from getting sick or others sick. If an employee leaves work because of COVID-19, it negatively affects the productivity of the small business. If the community finds out that an employee at a small business has COVID-19, patrons are unlikely to feel comfortable using its services or buying its goods. Another benefit of mandating the COVID-19 vaccine is it may attract more business and new employees. A vaccine mandate portrays that your organization values employees' and the community's health and well-being. If all employees are vaccinated, the employer could use this as a marketing strategy to attract customers.

Disadvantages

A disadvantage of an employer mandating a COVID-19 vaccine is cooperating with an employee who is unwilling to be vaccinated. The employer would have to explore accommodations for employees who decline the COVID-19 vaccine for personal reasons and mandating a COVID-19 vaccine may cause certain employees to leave. Employees may reject the COVID-19 vaccine due to medical reasons and/or religious beliefs. Employers have to be careful not to dismiss employees who refuse to get the COVID-19 vaccine due to medical or religious reasons because it is discriminatory employment practice that violates federal law.

In the end, small businesses must weigh the benefits and disadvantages of the implementation of the COVID-19 vaccination to see what works for their business.  

The S.J.S. Law Firm can help you resolve this issue and weigh your options. For a complimentary consultation, please contact us at (202) 505-5309.