Editor’s note: Tory Summey, Patti Bartis and Jenni Dunlap are employment attorneys with Parker Poe in Charlotte, Raleigh, and Charleston. They can be reached at torysummey@parkerpoe.com, jennidunlap@parkerpoe.com, and pattibartis@parkerpoe.com.

The rollout of COVID-19 vaccines is prompting businesses across the Carolinas to ask: should we require our employees to get a vaccine? For many tech companies, at this time a voluntary vaccination program with strong incentives will likely make the most sense from a legal and business standpoint.

On December 16, the U.S. Equal Employment Opportunity Commission issued guidance explaining that employers may adopt a COVID-19 vaccination requirement but cautioned that under the Americans with Disabilities Act (ADA) such programs must be “job-related and consistent with business necessity.” The EEOC also explained that to meet this standard, an employer would need to determine that an unvaccinated individual will expose others to the virus at the worksite.

Whether a business can meet this bar will likely vary by industry. For nursing homes and others in health care, the answer is almost certainly yes. For software developers and others in the tech industry, especially those whose employees can work effectively remotely, they will have a harder time meeting the standard of showing “business necessity”. There will be exceptions within industries, of course. For example, biotech companies in the Carolinas with a greater need for in-person interaction in a laboratory setting may be able to make a strong case. Companies that want to pursue a mandatory vaccination program should carefully consider how they would demonstrate their business necessity, and they should weigh the risks of the regulatory action by the EEOC or lawsuits brought by individual employees.

Employers should also consider important business concerns that go beyond the question of legality. For example, how would the policy impact employee morale? From an employee relations perspective, mandatory policies can lead to intense pushback. Mandatory policies also create challenging situations regarding employees with religious beliefs or disabilities that would prevent them from being vaccinated and who may be entitled to exemptions under the ADA or Title VII. Additionally, how would a company navigate enforcement and discipline under the policy – and how difficult is it to replace employees who ultimately leave? Further, how would a company handle the cost and distribution of the vaccines?

If companies decide not to make vaccination mandatory, there are still ways to prioritize the vaccination of their employees using a voluntary program.

  • First, company leaders can clearly communicate the importance of the vaccine and demonstrate leadership by being vaccinated themselves.
  • Second, they can direct employees with questions to reputable sources of information on how the vaccines work, how they have been vetted, and the risks they pose. The Centers for Disease Control and Prevention and the Food and Drug Administration both have helpful resources on those topics.
  • Third, and most importantly, companies can offer incentives for employees to get vaccinated. These can include bringing medical providers on-site to provide vaccinations where social distancing is possible, or giving employees paid time off to receive a vaccine off-site. Companies can cover the cost of the vaccine for employees or even give a bonus or gift card to those who get the vaccine.

As for tracking participation in a voluntary or a mandatory program, the EEOC has stated that employers may require employees to show proof of vaccination without opening a can of worms under the ADA. However, employers should be careful to advise employees not to provide medical or genetic information beyond the simple proof of vaccination.

For many tech companies, the bottom line is that a voluntary program with strong incentives may be the best way to drive COVID-19 vaccination in the workplace while limiting legal and business risks. As companies work through their strategy, it can be valuable to partner with attorneys to assess the specific legal and practical challenges facing their organizations.

(C) Parker Poe