Now that vaccines for COVID-19 will soon be available, what role should HR play?
Communicate general information to employees about the vaccine that’s truthful, clear, accurate, updated and relevant, says Delphine O’Rourke, partner, attorney and healthcare legal expert in Goodwin’s Life Sciences Group and healthcare practice. O’Rourke recently spoke at a webinar, The Coronavirus Vaccine: Legal Guidance for Employers and their Employees, hosted by David Levy, an epidemiologist and CEO of EHE Health.
But avoid targeting specific individuals or groups of employees, such as those with diabetes.
“It might seem like you’re playing big brother,” she says, adding that your actions could be legally interpreted as crossing the line. Instead, analyze your employee population. If most workers, for example, are middle-age or seniors, create general communications that apply to them. “But you cannot single out individuals, reach out to them and say, ‘You really need to take the vaccine because I know you have HIV and are more vulnerable.’ ”
Likewise, employers also should not prioritize which employees need to get vaccinated based on job title. Further, emphasize that getting vaccinated is a federal recommendation, not based on any position held by the employer, says O’Rourke.
Meanwhile, some vaccinated employees may be reluctant to work side by side with co-workers who aren’t vaccinated. She says HR can take proactive steps like require those who aren’t vaccinated to wear masks, social distance, work remotely or possibly reassign them.
But those citing religious beliefs are protected under Title VII of the Civil Rights Act. Others with a disability are protected by the Americans with Disabilities Act. In both cases, she says, HR will need to make reasonable accommodations.
O’Rourke says now is the time for HR to start documenting its strategy, framework, overall philosophy and risk tolerance. Make sure privacy controls are airtight and that the HR team fully understands accommodations. Ensure that your leadership team’s communications and actions are in sync. Just as important, never place information about an employee’s vaccination status in the person’s personnel file, which could potentially influence performance reviews.
“These are tools HR already has in its toolbox,” says O’Rourke. “Brush up on them. Create FAQs and make sure your employees are clear about what can and can’t be done so you’re not scrambling. Maximize your time now even though you don’t have all the answers.”
Without specific federal guidance, Levy says, employers may be at risk when making decisions about the vaccine. When in doubt, he says, “Err on the side of [saving] life because that will stick with you forever.”