With the Delta variant causing a spike in cases, experts believe more employers are likely to implement COVID-19 vaccine mandates.

Recent OSHA guidance addressing workplaces states that, except as required by state or local laws, “most employers no longer need to take steps to protect their workers from COVID-19 exposure in any workplace, or well-defined portions of a workplace, where all employees are fully vaccinated. Employers should still take steps to protect unvaccinated or otherwise at-risk workers in their workplaces, or well-defined portions of workplaces.” The guidance emphasizes that “vaccination is the key in a multi-layered approach to protect workers.” 

In a recent interview with The Business Journals, Julia Judish, Employment Law special counsel at Pillsbury, said employers implementing a vaccine mandate should note state or local laws that could prohibit a vaccine mandate—particularly employers with large workforces across many states and municipal borders.

For example, Judish said Montana recently enacted a law that makes vaccination status a protected characteristic like race or gender. Under the law, Montana employers can’t refuse employment to a person based on vaccination status. They also can’t mandate the vaccine that has only Emergency Use Authorization.

In other states, however, employers can terminate an employee for refusing to comply with a mandatory COVID-19 vaccine requirement unless the employee has a legally protected exemption.

“Employers should carefully consider whether they want to take that step, however, particularly if employees have been effectively performing their duties remotely, or if a significant percentage of the workforce has resisted getting vaccinated against COVID-19,” Judish said.

Judish said the Equal Employment Opportunity Commission requires employers to engage in an interactive process to determine if there are reasonable accommodations, such as continued telework, for employees who cannot be vaccinated for health or religious reasons.

“But if the employee’s unvaccinated status poses a direct threat to the health and safety of themselves or others that cannot be adequately mitigated through reasonable measures that do not pose an undue burden on the employer, the employer does not have to allow the employee on-site,” she added.

Consistent treatment of employees with similar circumstances is important. “As with any termination decision, there are risks of discrimination suits if an employer terminates an employee for violation of a policy but does not terminate similarly situated employees in a different protected class for the same policy violation,” Judish said. “There is also an employee morale component, as employees expect their employers to act fairly.”

She said the crux of the issue is whether the inconsistent treatment is justified by important differences between the two employees’ situations, which is one reason experts say companies also need to be consistent with which employees at a business are required to get a vaccine. For those workers, it’s also important to have a legitimate reason for requiring it.

Judish said vaccine mandates should be limited to employees working on-site, engaging in business travel or having in-person meetings.

“Employers would have difficulty identifying a legitimate work-related reason to require vaccination of employees who permanently work from home, without in-person work interactions,” she said.

On talking with your employees, Judish said that employers may want to anonymously survey employees first to learn the percentage of employees who are vaccinated or plan to be compared to the percentage of employees who are resistant to getting the vaccine.

That could help employers see if they are preparing to adopt a mandate policy that could potentially require terminating a substantial percentage of the workforce, she said.

Judish added that employers should ensure they comply with medical privacy laws for vaccination information and for accommodation requests.