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What to do if an employee defies your mandatory vaccination policy

Mandatory vaccination policies have become a touchstone issue for employers in just about every industry. And all of this begs a question of crucial importance: What should you do when employees defy your law office’s mandatory vaccination policy? Your choices:

  1. Terminate them immediately
  2. Accommodate them immediately
  3. None of the above

The answer is C, none of the above. It’s not that termination and accommodation aren’t valid options; it’s the word “immediately” that makes them the wrong choice.

The 2 things to do when employees refuse mandatory vaccination

Here’s what you should do if one of your employees refuses to comply with your mandatory vaccination policy.

Step 1: Find Out Why They Won’t Get Vaccinated

Before the pandemic, mandatory vaccination policies were rare and limited to sensitive sectors like health care and travel. But under new OSHA rules (provided that they stand up to court challenge) mandatory vaccination is now required for companies that have 100 or more employees. Even smaller employers might be subject to vaccination mandates under state and local laws. At the same time, employers must make accommodations required by the Americans with Disabilities Act (ADA) and Equal Employment Opportunity (EEO) laws.

Compliance Strategy: When employees refuse to comply with a mandatory vaccination policy, the first thing you must do is ask them why they won’t get vaccinated so you can determine whether you need to accommodate them. There are two possibilities:

  1. Employees are entitled to accommodations when they can’t or won’t get vaccinated due to a medical condition or other disability, a bona fide religious objection or some other personal characteristic or circumstance protected from discrimination. If employees claim that they have such a disability, religious belief, etc., you’re allowed to ask them for written proof, like a doctor’s note verifying that the employee has a medical issue that precludes vaccination.
  2. Employees aren’t entitled to accommodations when they can take the vaccine but choose not to do so out of personal preferences or beliefs, especially when those preferences or beliefs are based on misinformation or misunderstandings of scientific information about the vaccination.

Step 2: Take Action Based on Employee’s Reason for Refusing Vaccination

Once you find out why refusing employees won’t get vaccinated, take appropriate actions based on their reasons. There are two basic options: accommodations or discipline.

Scenario 1: Accommodating Refusing Employees

Your duty under the ADA and EEO laws is to make reasonable accommodations up to the point of undue hardship. In the vaccination context, that basically means not making the employee get the vaccine. However, that doesn’t necessarily mean letting the exempt employees just go about their business as normal. As an employer, you still have a duty to protect employees, vendors, clients and others in your office from infection. Allowing unvaccinated employees into the workplace would be deemed undue hardship if it would put others at undue risk.

Compliance Strategy: You must perform a hazard assessment based on the physical configurations of your workplace, the refusing employee’s job duties, with whom and for how long they have close contact and other risk factors specific to the work site. If, on the basis of that assessment, you determine that letting the employee come to work and go about her normal routine poses unacceptable infection risks, you must explore other accommodations, such as:

  • Requiring the employee to undergo rigorous and regular COVID-19 testing;
  • Requiring the employee to work from home; and/or
  • Letting the employee come to work, provided that he/she remains isolated, wears a mask at all times, self-monitors, carries out extra hygiene measures and follows other special health and safety protocols.

Scenario 2: Disciplining Refusing Employees

People with disabilities, religious beliefs or other legitimate grounds for accommodations under the ADA and EEO laws should be few and far between. Consequently, you should be in the position to enforce your mandatory vaccination policy in the vast majority of cases. At that point, it becomes a matter of following your standard discipline policies and procedures (or any special procedures you include in the enforcement provisions of your mandatory vaccination policy) the way you would with any other employee who deliberately defies an essential HR or health and safety policy. In addition to endangering others, you can justify discipline on the basis of insubordination.

What remains unclear at this point is whether a vaccine refusal rises to the level of just cause for termination even for a first offense, or requires the imposition of discipline on a progressive basis. But it’s a pretty good bet that courts, arbitrators and administrative tribunals will be issuing rulings on this issue before too long.

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