By Alyzabeth R. Smith, CPA
With the arrival of several COVID-19 vaccine options, guarded optimism is rising within the business community as companies choose the best course of action for keeping the workplace safe.
In the accounting industry many tasks could easily continue to be performed remotely. However, many companies are viewing a return to the office as imminent, even if it takes place at reduced levels. For companies weighing the latter option, generating a workforce that is completely vaccinated creates very desirable optics, particularly for businesses with a high volume of client-facing services.
Outside of the health care industry, sweeping imposition of mandatory vaccines is rare, but not prohibited by the U.S. Equal Employment Opportunity Commission (EEOC). Federal law allows for exceptions to employer-mandated vaccination, provided that the circumstances do not cause undue hardship to the employer.
Individuals restricted from vaccination due to religious reasons are protected under the Civil Rights Act of 1964. A vaccination exemption on religious grounds is designed to accommodate “sincerely-held” beliefs. The EEOC has made it clear that there is exceptional variety in what qualifies as religion, and many of the associated customs may be unconventional. As such, challenging an employee’s request for religious accommodation is a slippery slope.
Pursuant to the Americans with Disabilities Act, waivers can also be requested for those who object to vaccinations for medical reasons. Pregnancy or preexisting health conditions are examples of reasons that could qualify for exemption. In these cases, management will need to evaluate reasonable alternatives to accommodate the employee. This assessment includes a determination on whether or not the dissenting employee presents a “direct threat to the health and safety of others” by being present in communal workspace and refusing to take the vaccine. Prior to implementing any further action (up to and including denial of access to facilities or termination), management must consider available alternatives for the employee to safely continue their duties.
While it might be tempting for needle-shy employees to make bogus medical or religious exemption claims, employers can request certification if there is doubt about the legitimacy of the claims. On their own merit, fear of the vaccine or mistrust of the testing procedures are not sufficient evidence to meet the standard of religious or medical waiver. Documentation from a doctor or verification from a clergy member may be requested to support waiver claims.
In addition to these legally mandated exemptions, employers must also be conscious of other considerations. On Dec. 16, 2020, the EEOC provided enhanced guidelines on the manner in which mandated vaccination policies interact with employment anti-discrimination laws. In doing so, they reiterated that their guidance should “not interfere with or prevent employers from following the guidelines and suggestions made by the CDC or state/local public health authorities about steps employers should take regarding COVID-19.”
This updated guidance noted that prescreening vaccine questions need to be “job-related and consistent with business necessity” and the information collected should be kept confidential in a file “separate from the employee’s personnel file.”
Questionnaires used to collect this information would need to be evaluated for compliance with the Genetic Information Nondiscrimination Act (GINA). This law was implemented to prevent genetic information from being used to discriminate against employees in the workplace. Companies using their own prescreening questionnaires would need to consider the fact that requests for detailed family history could run afoul of this legislation.
While employers may have the option to mandate a COVID-19 vaccine, the more pertinent inquiry is if they should. Sweeping corporate mandates could invite litigation from protected classes. Adverse reactions to mandatory vaccination could further increase the companies’ risk of legal complications. Firm leadership may see a vaccine mandate as an unnecessary headache if employees work in low-COVID-transmission-risk environments. In higher risk environments, permanently embracing firmwide remote work policies (where appropriate) could be an additional mitigating factor.
While mandatory vaccination could help control the spread of COVID-19, forced compliance could create a highly disruptive environment. For comparative purposes, one need only to look at the furor incited in many parts of the nation by simple local mask mandates.
As there are many details to navigate when instituting a vaccine mandate, employers may choose to require verification of vaccination instead of administering the process in-house. Many more employers may opt to encourage voluntary vaccination by mandating education or offering financial incentives. In the quest to find the delicate balance between protecting public health and maintaining optimal productivity, many firms may find that discretion in implementation outweighs brute force.
Alyzabeth R. Smith, CPA, is a senior associate at Siegfried Advisory in Wilmington, Del., and a member of the Pennsylvania CPA Journal Editorial Board. She can be reached at email@example.com.
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