How to Write a Vaccination Policy for Your Organization

By Taylor Flake Lawson

Vaccinations have been a hot topic long before the COVID-19 Pandemic, but with the emergence of the new COVID-19 vaccination, vaccination policies are now at the forefront of the minds of many employers. Because of this, employers are left to make several important decisions regarding vaccinations in the workplace.  This article discusses key points in drafting, disseminating and enforcing vaccination policies in the workplace.  When writing a vaccination policy for your organization it is imperative that you start by making a decision.  You organization must decide whether vaccinations will be mandatory, non-mandatory or whether you will issue a policy that leaves vaccination optional and at the employee’s discretion.  Next, your organization will need to ensure that whatever decision is made, is compliant with local, state and federal law before the policy is published to employees.  Finally, your organization should seek to educate your employees about the policy and the rationale behind the policy and offer incentives to encourage compliance with the policy and boost morale. 

Make a Decision

When thinking about the first step with respect to writing a vaccination policy for your organization, you, as the employer have to make a definitive decision on your organization’s vaccination stance.  Vaccination policies typically fall into three camps.   Organizations typically decide to either (1) mandate vaccinations, (2) issue a non-mandatory vaccine policy or (3) issue a neutral policy that does not mandate vaccination but encourages vaccination.  When engaging in the decision making process, it is important to note that each organization should make an individualized decision on their stance.  Consider whether a policy’s terms will impact your business model, employee morale and business interruptions.  Each organization is different, and what your organization decides to do might be completely different, yet justified from another business even in the same industry.  When gathering the decision makers, below is a list of things that an organization needs to render a decision about:

• What vaccinations will be mandatory or non-mandatory?
• What vaccinations will the policy include?
• What level of proof will be required if vaccinations are mandated?

The most important thing to remember during this phase of policy-making is that at the end of the day, you want to publish a policy that is clear, well-defined, compliant and easy to understand.  This will help minimize confusion among your employees and avoid potential employee compliance issues.  

Ensure compliance with Federal, State & Local Laws when deciding on exceptions and exemptions.

It is critical that your organization create and disseminate a legally compliant policy.  Vaccination laws are consistently changing across the country which adds an extra layer of difficulty around policy-making.  Because of this, your organization must ensure that someone within the organization is keeping track of the changes in the law and issuing policy updates accordingly.

On May 28, 2021, the Equal Employment Opportunity Commission (EEOC) issued expanded technical assistance that provided new information about how the Americans with Disabilities Act (ADA) and the Genetic Information Nondiscrimination Act (GINA) apply when an employer provides incentives for employees to provide documentation or confirmation of their vaccination status.  The issued guidance provided the following key updates:

• Federal Equal Employment Opportunity laws do not stop an employer from requiring employees who physically enter the workspace to be vaccinated for COVID-19, as long as employers remain complaint with the reasonable accommodation provisions of the Americans with Disabilities Act, Title VII of the Civil Rights Act of 1964 and other relevant laws.  The Equal Employment Opportunity Commission added that from an Equal Employment Opportunity perspective, employers should keep in mind that some individuals and demographic groups face greater barriers to receiving the COVID-19 vaccination than others, some employees may be more negatively impacted by a vaccination mandate.
• Federal Equal Employment Opportunity laws also do not prevent or limit employers from offering incentives to employees who voluntary provide vaccination status proof when the vaccine was obtained from a third party (not the employer).  Additionally, employers should keep the voluntarily shared information confidential pursuant to the ADA.
• Employers that administer the vaccine to their employees can offer incentives for employees to receive the COVID-19 vaccination, as long as the incentives are not coercive.  The rationale, is that because the pre-screening questions for the vaccine require disclosing protected medical information and disability related information, the employee might feel coerced into disclosing that information.
• Employers may provide employees and their families with information to educate them about COVID-19 vaccines.

When reviewing the issued guidance, remember that this is only guidance issued by the EEOC.  Your organization is still responsible for monitoring and complying with all local, state and federal laws as they become available.

Think about how you will get over the hurdle of proving vaccination.

It is critical that your organization keep any documentation submitted about an employee’s vaccination status confidential.  When inquiring about an employee’s vaccination status, your organization should be sure to avoid making medical inquiries that violate the Americans with Disabilities Act.   When drafting your policy, consider how the information will be collected and how you will ensure that any information shared will be kept confidential.  It should also be communicated in your policy to employees that this information will be kept confidential.  

Finally, if vaccinations are mandated at your organization, your policy for verifying vaccination status must be as limited as possible.  Employers must not inquire into an employee’s reason or rationale for their vaccination status as it might solicit disability related information in violation of the Americans with Disabilities Act.  Employers should keep their inquiries to simply asking about the employee’s vaccination status.

Educate and Incentivize

Once your policy has been drafted, your organization must prepare to distribute it to your employees.   Issuing a vaccination policy of any sort, regardless to whether vaccinations will required or optional, will require a plan.  When preparing to publicize the policy, you should seek to educate your workforce on the new policy, communicate the new policy to all employees and offer incentives for complying with the policy.

As mentioned before, vaccinations have been a hot topic long before COVID-19.  An increasing amount of parents are choosing not to vaccinate their children coupled with the fact that the global COVID-19 pandemic has forced many to make a decision on whether or not to get the vaccine.  Because of this, any sort of policy issued might result in disgruntled employees.  Of course, it will be nearly impossible to issue a policy that pleases everyone.  Think of ways to preserve and boost employee morale prior to and upon the issuance of a vaccination policy.  One way to do that is by educating your employees on the rationale and decision-making process for the policy.  Providing some sort of education and explanation could help boost morale.  Finally, you should seek to incentivize compliance with the new policy.  Keep in mind the previously discussed Equal Employment Opportunity Commission guidance regarding incentives when deciding what type of incentives to offer employees.  

As you begin to gather your organization’s stakeholders and prepare to make critical decisions regarding your organization’s vaccination policy, keep in mind that this area is ever changing.  The place you start at might not be where you finish, but as long as your policy complies with the relevant law and is in the best interest of your business, you have accomplished the task.