As "normal" activities begin to resume, thanks to the COVID vaccine, many employers are facing a challenge: How can I encourage my employees to get the COVID vaccine? In the hospitality industry, organizations such as the AHLA and AAHOA have been advocating for hotel workers to have early access to the vaccine. However, 29% of hotel workers say they do not intend to get the COVID-19 vaccine. So some hospitality brands may wonder, can I force my employees to get the vaccine? In a word: No.
"The standard [for who can mandate vaccines] is fairly tough,” says Chelsea Smith, a labor and employment attorney at the national law firm Hall Estill. She has been helping employers navigate the details surrounding vaccines and the workplace. “The employer must prove that a mandatory vaccine is job-related and consistent with business necessity or justified by a direct threat and no broader than necessary. It is much easier to just encourage employees to get the vaccine rather than mandating it.”
When asked what incentives are best to use, Smith says, "I prefer PTO over incentives. If an employer gives an incentive, they should know that if they have employees who won’t get the vaccine because of a sincerely held religious belief or a disability, then those employees should still be given an opportunity to earn the same incentive.”
Marriott recently announced that it will offer U.S. and Canadian employees the equivalent of four hours pay upon completion of the vaccination.
When asked her opinion of Marriott’s approach, Smith said: “I actually think Marriot’s approach is excellent.”
And giving employees a choice to get the vaccine with incentives could also save the employer costly litigation down the road, Smith says.
"If an employer meets the standard to mandate a vaccine, they must still allow exemptions for disability and sincerely held religious beliefs and if they don’t, they could be liable under the ADA or Title VII,” she adds. “Also, employers should be careful about asking why employees didn’t receive a vaccine — that question could be subject to the ADA and it must be job-related and consistent with business necessity.”
Additionally, there could also be issues if an employer mandates a vaccine and the employee has an adverse reaction.
“If the employee had an adverse reaction, it may fall under workers compensation, depending on the state laws,” Smith says. “We could see an uptick of workers compensation claims from reactions to a mandatory vaccine."