What Can You Do?
The United States Equal Opportunity Commission (EEOC) and the Centers for Disease Control have strongly suggested that, with limited exceptions, employers may mandate vaccinations. Employees with disabilities or religious objections to being vaccinated may have to be exempted from vaccination requirements or otherwise accommodated unless it creates an undue hardship.
Employers may believe that Governor DeSantis’ recent Executive Order 21-81 prevents them from implementing mandatory vaccination programs. Executive Order 21-81, however, only states that businesses are prohibited from requiring that patrons or customers show proof of vaccination. It does not address employees.
Finally, some people argue that the Emergency Use Authorization (EUA), under which all vaccines are currently being given, prohibits mandatory vaccination programs. The EUA statute requires that, before being given the vaccination, individuals must be informed of “the option to accept or refuse administration of the product, [and] of the consequences, if any, of refusing administration of the product. . .” Those who argue against mandatory vaccinations take the position that the language giving individuals the option to accept or refuse the vaccine prevents employee mandates. Coupled with the facts that the EEOC seems to approve of mandatory vaccination and that most Florida employees are “at-will” a reasonable argument can be made that employers may terminate employees for refusing to be vaccinated so long as they are first told the consequence (termination) of their refusal.
What Are Others Doing?
To date, it appears that few employers require that employees be vaccinated. The April 29, 2021 edition of the Orlando Sentinel reports that some large Central Florida employers are not mandating vaccination but are providing incentives to employees who get the shot[s]. Walt Disney World is offering a one-time payment equal to four hours of pay. Darden Restaurants has offered two hours of pay for each dose of the vaccine an employee receives (maximum of four hours total). Smaller employers are also offering cash incentives.
Employers who do not want to require Covid-19 vaccinations but want to encourage employees to get vaccinated should develop a plan to do so. According to the Centers for Disease Control, in addition to incentives, a plan might include:
Building confidence in the vaccine by, for example, having owners and leaders share their reasons for being vaccinated and posting the CDC’s vaccine Fact Sheet which can be found here.
Finally, if you have employees who have not been vaccinated, the CDC recommends that you continue to follow its Guidance for Businesses and Employers Responding to Covid-19. This includes wearing well-fitting masks, making sure employees stay at least 6 feet apart from each other, avoiding crowds and poorly ventilated spaces, and washing hands often.