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The Delta variant is sweeping the country. COVID-19 illness rates are increasing.  Many large employers such as Google, Facebook, Morgan Stanley, Tyson Foods, and The Washington Post have made vaccination mandatory for their employees. The federal government has decreed that vaccines are mandatory for some executive agency employees.  The Secretary of Defense has indicated that he will seek a vaccine mandate for active duty military members by mid-September.    In this climate, many employers may be wondering if they, too, should make COVID-19 vaccinations mandatory for their workforce.  Here are some practical and legal considerations as you evaluate this course of action:

While it appears that the federal courts would likely uphold properly crafted employer rules mandating vaccines, subject to medical and religious accommodations, the practical issues when deciding whether to implement such a rule that should be considered include the following:

One way to obtain information that could help inform your decision making process is to conduct an anonymous survey of your workforce, asking employees to tell you if they are vaccinated, and whether they would get vaccinated if your company made it mandatory (subject to religious and medical accommodations), or if they would look for work elsewhere.

Although the practical considerations may ultimately drive your decision, if your company decides that a vaccine mandate is appropriate, be sure to consult your employment counsel so that a legally defensible written policy can be developed, with the appropriate communication tools and evaluation metrics for any requests for accommodation based on religion or medical condition, and to ensure that any wage and hour issues relating to time spent obtaining a vaccination are properly addressed

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