Can accounting firms mandate vaccines?

By Cheryl Meyer

With the rollout of COVID-19 vaccines, public accounting firms and other employers are watching and waiting, determining how far they can go in encouraging staff to be vaccinated.

RubinBrown LLP, a large public accounting firm with offices in six U.S. cities, has taken a path typical of professional service organizations: It is providing support and informational resources to its employees, who have been working remotely since the coronavirus hit more than a year ago.

“We’re taking more of an educational approach,” said St. Louis-based Steven Harris, CPA, CGMA, the partner-in-charge of RubinBrown’s Entrepreneurial Services Group. “People are looking for an opportunity to get the vaccination, and the firm has done a great job with educating our team on the resources available to them.”

Vaccine availability is still limited, though, and vaccines are still only permitted under an Emergency Use Authorization by the U.S. Food and Drug Administration (FDA), meaning the FDA has not yet fully approved them, noted attorney Mark Spring, office managing partner at CDF Labor Law LLP in Sacramento, Calif.

But the issue of how to handle the vaccine in workplaces nationwide could get dicey in the months ahead, depending on the unknowns: Will the number of coronavirus patients subside or continue to rise? Will the vaccines be effective in reducing pandemic patient numbers? Will employees who do not get vaccinated pose a threat to others in the workplace?

Employers might also worry about risks associated with workers’ compensation claims. “If you are mandating and someone has complications, it’s very likely that they would be able to demonstrate that they got the vaccine in order to work, and therefore a workers’ comp claim could be considered,” Spring said.

And perhaps the biggest unknown of all is this: Will state and federal lawmakers draft legislation limiting what employers can do regarding the vaccine? Legislative attempts have already been launched in some states, reported Bloomberg Law and other publications. In early February, North Dakota lawmakers introduced several bills attempting to block businesses from mandating employee COVID-19 vaccinations. Those bills were defeated, but the likelihood for legislative changes in any state is a moving target. “This has become a highly political issue,” Spring said.

In general, U.S. employers can mandate their workers get vaccinated, but most companies are encouraging rather than enforcing, unless they are in industries such as health care or food services where workers deal directly with a vulnerable public. Most CPAs are already working from home, making public accounting firms less inclined to issue such an order.

What’s more, there are exemptions to those mandates even if they are in place: If employees have religious beliefs against vaccines, or medical conditions that preclude them from safely getting vaccinated, employers who force them to do so as a condition of employment could be in violation of the Americans With Disabilities Act (ADA) or Title VII of the Civil Rights Act of 1964.

“There have been lawsuits brought under Title VII and the ADA related to other vaccines,” said Jerry Walters Jr., an employment law attorney and shareholder at Littler Mendelson PC in Charlotte, N.C.

In addition, some people simply don’t want to get the vaccine, making organizations nervous about pressing the issue with staff. “For cultural reasons, some employers are not mandating the vaccine,” Walters said. “These employers have considered the pushback from employees who refuse to get the vaccine or oppose it generally, as well as the impact a mandate might have on company culture and employee morale.”

Harris, Spring, and Walters offer the following tips on how to handle the vaccine rollout while avoiding possible staff-related and legal complications:

Establish a strong leadership plan. Be consistent in your directives regarding the vaccine and establish formal, written guidelines that everyone is expected to follow, Spring advised. “You can’t justify [a policy] if it’s not enforced across the board,” he said, noting there’s a risk your organization’s message can shift if you lack a written policy.

Offer other options. If there are alternatives to mandating a vaccine, such as continuing with a work-from-home policy, then contemplate those choices instead, Walters said. “The more prudent approach is to not require at this time and see how things play out,” he said.

Educate employees and be flexible. Provide information to employees so they can make informed decisions about getting or bypassing the vaccine. “Make sure your people understand the process and resources available to obtain the vaccine," Harris said. Employees, he noted, can get on the registries for the state, local government, hospitals, and pharmacies.

Also, consider making allowances for employees who must get the vaccine during working hours, and possibly offer time off if they have a reaction, especially from the second vaccine dose, Walters said.

Lead the way. If your organization is pushing employees to get the COVID-19 vaccine, then partners or other managers in the firm should set an example, if possible. “It’s important that leaders in all areas — politics, management — don’t just talk the talk but walk the walk,” Spring said. “If you’re going to strongly encourage the vaccine, you need to be doing it yourself.”

Follow the law. If your organization is considering mandating the vaccine, be mindful of the law. First, “employers must keep any medically related information about employees obtained in the course of the vaccination program confidential,” Walters said. Secondly, be prepared to “accommodate those seeking an exemption on religious grounds or based on a disability or pregnancy that may post a medical risk” should they get the vaccine, he added.

Consult legal counsel. If your firm decides to mandate the vaccine, consult an attorney who specializes in employment law and is knowledgeable about the laws of the state(s) where your firm is located. Also, note that there is a possibility that employees could sue if they are fired for not getting the vaccine.

Some firms are offering financial or other incentives such as time off to employees who get vaccinated. Spring said he has heard of employers offering incentives such as gift cards, cash payments of $100, or an extra hour of pay for proof of vaccination.

Employers that are considering such incentives should consult an attorney first, he said. There may be legal issues around them that an attorney would be aware of. For instance, in many states gift cards “likely would have to be included in the regular rate of pay for calculating overtime for hourly employees," he said. "It is important that employers consult with legal counsel to make sure they are treating these financial incentives correctly from a wage and hour basis."

Maintain a safe workplace. As the vaccine continues to roll out slowly, continue existing protection protocols such as face masks, social distancing, travel restrictions, and symptom screenings, Walters advised. “Especially in the transition period — when some workers are vaccinated and others are not — organizations should remain vigilant in enforcing these policies as a matter of workplace safety,” he said.

Cheryl Meyer is a freelance writer based in California. To comment on this article or to suggest an idea for another article, contact Courtney Vien, a JofA senior editor, at Courtney.Vien@aicpa-cima.com.

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