VOLUNTEER VACCINE POLICIES
Given the legal risks and cultural impacts of implementing a mandatory COVID-19 vaccine policy, many employers are thinking voluntary vaccine programs. There are many versions of voluntary programs ranging from:
Saying nothing about the vaccine and letting employees make an individual choice based on publicly available information.
Offering general incentives to the entire work force, like time off for all employees “vaccine day!” and launching an education campaign.
Offering an opt-in, incentive program. Employees who get the vaccine provide proof to their employer and receive time off or another incentive.
Implementing an opt-out program. Employees are required to get the vaccine unless they affirmatively opt-out. Employees who verify they received the vaccine may get an incentive, like additional time off. Employees who opt-out may be asked to comply with additional safety protocols and be provided with information regarding the risks of being unvaccinated in the workplace.
What voluntary vaccine policy makes sense for your workforce will likely depend on the level of legal risk associated with each option for your organization (each option comes with legal risks that you should weigh with counsel), your capacity to implement a new employee program, your need for data regarding who is and is not vaccinated in your workplace and the feedback you get from your employees and leadership team. Given the sensitivity of this topic, I would strongly encourage employers to start this conversation soon – asking tough questions like what safety and travel protocols do we need to continue to have in place and for how long if we do not get a critical mass of employees vaccinated; if we have a voluntary program, how do we protect an individual’s choice; and how long do any extra COVID benefits (leave, remote work, etc.) need to be in place after the vaccine is publicly available? Being transparent with your workforce about what you are doing and why and allowing them the opportunity to provide input at various points during the process will help build trust during this period of uncertainty, mitigating legal risk and building your workplace culture.
VACCINE POLICIES FOR HEALTH CARE PROVIDERS Under Oregon law, certain health care providers and health care facilities cannot require a vaccine as a condition of employment unless the vaccine is otherwise required by law. This means that covered employers cannot terminate employees for refusing to get the vaccine. Oregon has not passed a law requiring the vaccine. Health care providers covered by this law can still consider one of the volunteer programs explained above.
FLEX WORK POLICIES Make sure that your remote work policies and procedures explain that flexibility offered during the pandemic may not be available as circumstances change and provide a process for individuals to request accommodations. Remote work/flex work policies should also state that working remotely is a privilege that may be modified or removed based on operational need, performance issues or for other lawful reasons. Look back at any efficiencies or gains in productivity or employee morale achieved through remote work – use that data to think through what remote work/flex time policies and procedures you should continue to implement after the vaccine roles out. Communicate with your work force about the flexibility you have offered and can offer in the future – highlighting how this supports care givers and work life balance.
QUARANTINE/ISOLATION WORK AND TRAINING Although the federal paid sick time provisions have expired, employees may be able to file for workers’ compensation if there is an exposure in the workplace. Consider providing a-symptomatic employees who cannot be in the workplace due to quarantine or isolation protocols with remote work or remote trainings. Remember that new OSHA guidance protects employees who are complying with public-health-authority-directed quarantine or isolation protocols.